On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy.

On 21 December 2006, and before the pre-trial conference, the plaintiff amended its claim by the addition of paragraph 10 which is a claim for consequential damages in the sum of $100,000,000= being the replacement value of the vehicle.

The first defendant pleaded that it first acted as the second defendant's agent and its obligation ended as soon as the policy was in place and that the premium had not been paid at the time of the accident hence the policy was revoked.

The second defendant, in its plea, pleaded ignorance of the policy and put the plaintiff to the proof thereof.

At the commencement of the trial, the second defendant applied for, and was granted an amendment to its plea. The amendment was a withdrawal of the initial plea and its substitution with a plea to the effect that;

1. The first defendant, as agent of plaintiff, entered into an agreement with the second defendant that the plaintiff should pay the insurance policy premium of $3,524=26 in equal installments over a period of 3 months as from 25 February 2004.

2. That the plaintiff did not comply with this agreement, and, as at the date of the accident the plaintiff had not performed its obligations to pay the instalments.

3. In any event, the plaintiff is covered for a total of $60,000= in terms of the policy and is contractually precluded from claiming more.

The plaintiff gave evidence through its Managing Director, Mr. Zisengwe. Mr. Gideon Muchakwa gave evidence for the first defendant after which Mr. Moses T. Chakaringa and Mr. Member Murasiranwa gave evidence for the second defendant.

From the evidence adduced in court the following are common cause.

The plaintiff entered into an insurance contract with the second defendant. This was done through the first defendant who acted as broker. The premium was put at $3,524,259=. The insured value was put at $60,000,000= (old currency). On 10 February 2004, the plaintiff paid $200= (revalued) towards the premium. The plaintiff was then issued with a policy document dated 18 February 2004. The period of insurance was stated as 'From 10/02/ 04 to 31/01/05 (both dates inclusive)'.

On 23 March 2004 the motor vehicle so insured was involved in an accident and was declared a write off. As at the time of the accident, the plaintiff had not paid the balance of the premium. Such balance was only paid on 7 April 2004 to the first defendant. When the plaintiff attempted to make a claim on the policy the second defendant refused to honor the claim on the basis that the plaintiff had not paid the premium as per policy.

The testimony by Mr. Zisengwe was to the effect that the plaintiff had been asked to pay the premium in three months. It was never stated that the instalments had to be equal. At the time of the accident the three months period had not lapsed. When the accident occurred the plaintiff was asked to pay the balance in order that its claim can be sent to the second defendant - and it did so. In this regard he tendered two receipts as exhibits 1 and 2 for the payments.

The first defendant's evidence, on the other hand, was to the effect that when Mrs. Zisengwe came to insure the plaintiff's motor vehicle she was told the premium that had to be paid. As she did not have the full amount she was allowed to pay $200= on her undertaking to pay the balance in two weeks time. She was warned of the consequences of not paying the full premium. After failing to pay within that period the first defendant extended the period to three (3) months. According to Mr Muchakwa, this extension was at the plaintiff's risk.

At the pre-trial conference, the issues were viewed as;

“1. The interpretation of clause 1 of the contractual document. It being admitted that plaintiff paid its premium on 25 February 2004; and

2. The quantum of damages.”

After hearing evidence from the witnesses, it was apparent that the parties were not agreed that the premium was paid on 25 February, 2004. The receipts tendered showed the initial payment was on 10 February 2004 and the second payment was on 7 April 2004.

The main issues would thus be;

1. Whether or not the plaintiff had paid the premium in terms of the policy;

2. Whether or not the defendants are liable to the plaintiff as per claim;

3. Whether or not the plaintiff is entitled to payment of the sum of $100,000,000= in respect of its claim for the loss of its motor vehicle in terms of the policy agreement; and

4. Who between the defendants is liable to pay the plaintiff.

PAYMENT IN TERMS OF THE POLICY

The policy document, in its preamble, states that “whereas the insured, by a proposal and declaration which shall be the basis of this contract and deemed to be incorporated herein, has applied to the company for the insurance and has paid the premium as consideration for such insurance in respect of accident loss or damage occurring during the period of insurance.”

That preamble presupposes the applicant has paid the premium.

I did not hear any party to interpret that paragraph in any way as pre-supposing that premium would not have been paid. It is in that light that the issue of payment of the premium is important.

The plaintiff's case was that in spite of this there was a premium payment plan in place which was agreed with the first defendant at the time the policy was agreed in terms of which the premium was payable over a period of three months. Mr. Zisengwe tendered exhibit 3 as proof of the arrangement.

Paragraph 2 thereof states that;

“We hasten to add that a premium payment plan had been agreed to spread payment over three months and initial payment had been effected on receipt of policy before the accident, which we take cognizance of.”

This letter is from the first defendant to the plaintiff. The first paragraph thereof shows clearly that the second defendant was refusing to pay on the premise that premium payment was done after the loss which aspect they contended vitiates the terms and conditions of the policy.

In his evidence Mr. Muchakwa did not deny this.

The first defendant having allowed the plaintiff to pay in instalments found itself in difficulties to persuade the second defendant to pay.

In both its plea and in evidence the first defendant acknowledged that it had no authority to allow the plaintiff to pay its premium in installments. It is because of that lack of authority that it asked the plaintiff to pay up before they could file their claim. It is clear beyond doubt that the payment arrangement was initially as between the plaintiff and the first defendant. That arrangement was apparently not in terms of the policy document. It was an arrangement the first defendant agreed to for the convenience of the plaintiff and not because there was express authority from the second defendant for the first defendant to grant such payment terms.

The second defendant's evidence was to the effect that the insurance policy the plaintiff took out required a one off payment. In the instance case no such payment was made hence it declined the plaintiff's claim. However, in its amended plea, the second defendant stated that “first defendant, acting in its capacity as agent for plaintiff entered into an agreement with second defendant that plaintiff should pay the insurance policy premium of $3,524= 26 in equal installments over a period of 3 months as from 25 February 2004.”

There was thus contradiction between the second defendant's plea and evidence by its witnesses. The witnesses could not explain away the contradiction.

Mr Muchakwa who should have been better placed to testify on this was a ball of confusion and contradictions. For instance, whilst being categorical that the policy was of a one off payment at inception he was, at some stage, heard to say the second defendant should nevertheless have honored the claim. He found it difficult to admit the first defendant's negligence in not advising the plaintiff of the consequences of partial payment and also in not advising the second defendant about the credit arrangement with the plaintiff.

The second defendant, through Mr Murasiranwa, indicated that upon receipt of $200 towards payment of the premium they questioned the first defendant about it. The first defendant was reminded that a failure to pay the full premium would lead to the invalidity of the policy for non-remittance. When asked why the second defendant had not advised the first defendant of the invalidity of the policy in view of non payment of the premium Mr Murasiranwa said that events took over as the accident took place. In terms of clause 8 of the General Conditions of the policy document the second defendant could have cancelled the policy.

Despite not receiving full premium the second defendant issued the policy document and had not cancelled it by the time of the accident.

The amended plea acknowledges the arrangement to pay in instalments. If therefore the second defendant wishes to rely on a breach of contract the burden of proof is on it. See Brightside Enterprises (Pvt) Ltd v Zimnat Insurance Co. Ltd 1998 1 ZLR 117.

In casu, the second defendant seemed to have condoned the payment in installments and conceded in its amended plea that; “First defendant, acting in its capacity as agent for plaintiff entered into an agreement with second defendant that plaintiff should pay the insurance policy premium of $3,523=26 in equal installments over a period of 3 months from 25 February 2004.”…,.

The second defendant can thus not seek to rely on such mode of payment not to honor the claim.

Applying…, general principles of agency to the facts of this case, it seems to me that Adele Farquhar was duly authorised to represent the plaintiff as the seller of the two houses in September 2002.

Adele Farquhar's authority to do so derives, firstly, from the sales having been authorised by Peter Bailey in terms of clause 2.3 as read with clause 4.2.1 of the Deed of Compromise, and, secondly, from her ostensible appointment and subsequent acts as a Director of the plaintiff under Article 78 as read with Article 101 of the plaintiff's Articles of Association.

In my view, the cumulative effect of these provisions, coupled with the conduct of the parties before and after the disputed sales, affords the requisite authority to sell the houses in question.

It is to be noted, in this regard, that the first intimation of the sales being challenged was only provided in a letter from the plaintiff's lawyers addressed to the defendant on the 7^th of September 2004 [Exhibit 8] - over two years after the houses had been sold. In the intervening period, the plaintiff did not question the propriety of the sales, and, in fact, gave vacant possession of the houses to the defendant. The latter, on its part, paid the agreed purchase price in full and took occupation of the houses. If the sales were to be reversed, at this juncture, the defendant would be significantly prejudiced in terms of its monetary outlay for the Stands in 2002.

In the premises, I am satisfied that Adele Farquhar did possess the requisite ostensible authority to represent the plaintiff in the agreements of sale and that they were therefore validly concluded. The plaintiff is accordingly bound by the agreements and thereby estopped from recovering the Stands in question.

The facts giving rise to this application are largely common cause. They are as follows:

The applicant is in the farming business, operating a farm in Chakari. In October 2006, it set out to acquire a centre pivot irrigation system for its farm. Its Managing Director, duly authorized to act on behalf of the applicant, approached one Douglas Chihuri (“Chihuri”) who was selling a center pivot system on behalf of the respondent.

An agreement of sale was concluded between the plaintiff and Douglas Chihuri, acting for his principal, regarding a 140HA center pivot system belonging to the respondent.

A purchase price in the sum of $12,000,000 and installation charges of $3,000,000 were agreed upon.

Pursuant to the agreement, an invoice was made out to the applicant giving the total amount payable as $15 million.

It was made clear to Douglas Chihuri that payment would be made through the African Banking Corporation and would take a few weeks to be processed.

A month later, payment was effected in the agreed sum. This was made in favour of Chartered Enterprises, Douglas Chihuri's trading mantle.

A week after payment had been made, the applicant met with the respondent to discuss the details of the delivery of the centre pivot. Douglas Chihuri was in attendance. At the meeting, the respondent unilaterally increased the purchase price of the centre pivot. Instead of holding the respondent to the agreed price, the applicant agreed to pay an additional $5million and executed an acknowledgement of debt to this effect.

The seller also appended his signature to the acknowledgement. So did Douglas Chihuri.

Payment of the $15 million was then made to the respondent according to his instructions. Still acting as the seller's agent, Douglas Chihuri agreed to have the centre pivot delivered to the applicant.

The respondent did not deliver the centre pivot, prompting the applicant to bring this application seeking an order compelling the respondent to deliver a 140HA center pivot to it.

In opposing the application, the respondent denies knowledge of what transpired between the applicant and Douglas Chihuri, but admits that he was, at that time, selling two centre pivots, the details of which he gave to Douglas Chihuri. He further confirmed, that, in time, Douglas Chihuri advised him that he had secured a buyer for one of the centre pivots. He also confirmed that he received the sum of $14 million dollars for the centre pivot that Douglas Chihuri had sold to the applicant on his behalf and that a balance in the sum of $5 million would be paid in due course.

It was also suggested to him that a further $15 million would be paid for the same pivot after the applicant had sold his beasts or that he could collect the beasts himself as further payment for the sold pivot. He however opted for a cash payment. He did not agree to the delivery of the pivot in the absence of full payment and did not deliver the center pivot because he did not receive the full purchase price of $35 million.

At the hearing of the application, it emerged that the respondent had sold the centre pivot, the subject of this dispute, after being served with this application but before the matter was determined.

This emerged from supplementary affidavits filed by both parties days before the hearing and which were filed with my leave. I granted leave to the parties to file the supplementary affidavits as, in my view, they air the full dispute between the parties and bring out the real issue for determination in this matter.

In his supplementary affidavit, the respondent deposed, that, after the filing of the above application, a director of the applicant caused his arrest on allegations of fraud. It was alleged, in the criminal proceedings, that the respondent had fraudulently misrepresented to the said director that the centre pivot was available for sale when he knew that it was not as it was to be sold to a third party. The respondent was duly prosecuted but was acquitted at the close of the trial.

In it own supplementary affidavit, the applicant admitted the facts given in the respondent's additional affidavit but urged me to find the contents of the affidavit inadmissible on the basis of irrelevancy.

Before proceeding further, I will dispose of the admissibility of the contents of the affidavit.

In my view, once a court grants leave to a party to file an additional affidavit, that grant of leave necessarily implies that the contents of the affidavit are admissible. Supplementary affidavits should only be filed if their contents are relevant to the dispute before the court.

It is a general rule of evidence that irrelevant evidence is inadmissible.

Section 26 of the Civil Evidence Act [Chapter 8.01] provides that evidence that is irrelevant or immaterial and cannot lead to the proving or disproving of any point in issue shall not be admissible.

This section is simply a codification of the position at common law which holds that all facts relevant to the issue in legal proceedings may be proved and where a legally recognized exception to this rule is not invoked, relevancy remains the fundamental rule governing the admissibility of evidence.

As indicated above, this is the rule that a court summarily employs before granting leave to file additional affidavits in motion proceedings.

In my view, the rule against admissibility of irrelevant evidence is rooted more in common sense than in a legal principle. It is a common sense approach by the court to govern that which it will accept or reject lest it be inundated by evidence of all facts surrounding a dispute and trials will take longer than is necessary to resolve if the parties were left at liberty to drag in all they wish or think is necessary.

It however remains clear that the rule against irrelevant evidence is against evidence of facts that have little to do with the issue in dispute.

In casu, I was of the view that the disposal of the centre pivot pending litigation is the issue in dispute and thus facts tending to prove the disposal cannot be irrelevant. Further, and in any event, the facts sought to be rendered inadmissible by the applicant are common cause and thus no party will be prejudiced by its admission into evidence.

It is on the basis of the above that I ruled admissible the contents of the two supplementary affidavits.

I now turn to consider the merits of the application.

The issues that fall for determination in this application are mainly two in my view:

(i) Firstly, I have to determine whether or not there was an agreement between the applicant and the respondent for the sale of the centre pivot for $20 million.

The respondent has sought to argue that the agreed purchase price was $35 million. He deposed in his opposing affidavit that after the applicant had paid the first $15 million and had promised a further $5 million, by way of the acknowledgement of debt; the parties agreed to a further payment of $15 million after the applicant had sold its beasts.

Relying on these averments by the respondent, counsel for the respondent argued that the correct purchase price of the center pivot cannot, in the circumstances, be ascertained without the leading of oral evidence and thus the application should fail on this basis.

It is common cause that Douglas Chihuri, acting as the agent of the respondent, agreed to sell the centre pivot to the applicant for $15 million. The parties agreed, later, to vary the purchase price to $20 million, when, after making payment of the initial purchase price, the applicant promised, by way of an acknowledgement of debt, to pay an additional $5 million.

The agency of Douglas Chihuri to represent the respondent, whilst challenged in the opposing affidavit, was not advanced in argument.

In my view, counsel for the respondent was well advised not to advance the argument in view of the affidavit by Douglas Chihuri and the fact that the respondent accepted the sum of $15 million paid by the applicant through Chihuri.

By his own conduct, of accepting the payment, the respondent put paid to whatever argument he may have had against the agency of Douglas Chihuri. By this conduct, he gave out and confirmed that Douglas Chihuri was indeed selling the centre pivot on his behalf and is thus bound not only by what Douglas Chihuri did but by what he also personally did.

If there was any doubt about the agency of Douglas Chihuri, the respondent personally removed that doubt by accepting the part payment of the purchase price and agreeing with the applicant that the balance now stood at $5 million, thereby putting beyond doubt that the purchase price was $20 million.

In my view, he is thus condemned by his own actions as revealed by the papers filed of record.

On 16 March 2007, and at Harare, the applicant entered into a sale agreement with Gatsikanayi Enock Nyamupanda (herein after referred to as Nyamupanda) for the purchase of a certain piece of land being Stand Number 9642 A Salisbury Township also known as Number 2 Umuguza Close, Wilmington Park, Cranborne, Harare, held under Deed of Transfer number 896/03.

The applicant duly paid the purchase price and title was passed to him on 20 April 2007 under Deed of Transfer number 2076/07.

He however could not take occupation of the property as the respondent's son, Killian Chipendo, was in occupation. As a result, the applicant instituted legal proceedings for the eviction of Killian Chipendo and all those claiming occupation through him in case number HC2951/07.

On 26 February 2008, the eviction order was granted and a writ of eviction issued. On 26 August 2008, Killian Chipendo and all those claiming occupation through him were duly evicted by the Deputy Sheriff.

The respondent, who was amongst those evicted on that date, re-took occupation of the property without any court order.

The respondent contended that she was not claiming occupation through Killian Chipendo but in her own right as the surviving spouse of the late Ronnie T Chipendo.

It is common cause that the Estate late R T Chipendo was administered by an executor dative – Muchivete Hungwe of Messrs Hungwe and Partners legal practitioners.

The executor dative obtained authority to sell the property in terms of section 120 of the Administration of Deceased Estates Act [Chapter 6:01] from the Master of the High Court.

Upon obtaining the Master of the High Court's consent he duly sold the property to Gatsikanayi Enock Nyamupanda. Title was passed to Gatsikanayi Enock Nyamupanda by virtue of Deed of Transfer number 896/03.

After the sale, the executor dative did a final Administration Account and distribution plan. The proceeds of the sale were shared amongst the children of the late Ronnie T Chipendo.

The respondent did not partake in the proceeds as she was said to have divorced the late R T Chipendo in 1991 - well before his death.

Gatsikanayi Enock Nyamupanda, as the new owner, sold the property to the applicant on 16 March 2007. The applicant duly obtained title by virtue of Deed of Transfer number 2076/07 dated 20 April 2007.

It was in furtherance of his title to the property, that, on 26 February 2008, the applicant obtained an order for the eviction of Killian Chipendo and all those claiming occupation through him from this court.

The eviction was duly executed by the Deputy Sheriff on 26 August 2008.

As already alluded to, the respondent was one of those who were evicted from the property. She however re-took occupation without any court order. In Mairos Lisimba v Lizzy Chipendo HC868/09, the applicant therein instituted contempt of court proceedings against the respondent for re-occupying the property after eviction.

The respondent opposed the application claiming that she was never cited in the proceedings that led to Killian Chipendo being evicted. As a surviving spouse she occupied the house in her own right.

In this case, HC2220/09, the applicant sought an eviction order against the respondent, her guests and invitees, and all those claiming occupation through her from the property in question.

The respondent opposed the application.

Her opposition was based on her contention that she was the surviving spouse as she had never divorced the late R T Chipendo.

There was no denying that the respondent did not challenge the initial sale of the property by the executor dative to Gatsikanayi Enock Nyamupanda. She also had not objected to the subsequent sale by Gatsikanayi Enock Nyamupanda to the present applicant.

It was further not disputed the property was now registered in the applicant's name.

Section 14(a) of the Deeds Registries Act [Chapter 20:05] states that “the ownership of land maybe conveyed from one person to another only by means of a deed of transfer executed or attested by a Registrar.”

This is what transpired in this instance when ownership passed to Gatsikanayi Enock Nyamupanda, and, later, to the applicant in that order. As owner, the applicant is entitled to claim the property from anyone who is in occupation.

Indeed, as noted in Chetty v Naidoo 1974 (3) SA 13 A:

“There can be no doubt that one of the incidents is the right of the exclusive possession of the res with the necessary corollary that the owner may claim his property wherever and from whosoever is holding it. It is inherent in the nature of ownership that possession of the res would usually be with the owner; it follows that no other person may withhold it.”

The respondent's defence to the application was bound to be affected by the decision in Lizzy Chipendo v Tinashe Muchivete Zenda & Ors HC2655/09.

In that case, the applicant, who is the present respondent, was seeking condonation for the late filing of an application for review in HC2575/09.

After the ruling in HC2655/09 in which I dismissed the respondent's application for condonation for the late filing of HC2575/09, counsel for the applicant inquired on whether the respondent was still intent on opposing the applicant's application in HC2220/09 and HC868/09.

Counsel for the respondent indicated that in view of the ruling in HC2655/09 she was no longer opposing the relief sought by the applicant in HC2220/09....,.

It was conceded that essentially what the applicant was seeking in both HC868/09 and HC2220/09 was the eviction of the respondent from the premises in question.

In HC2220/09 the respondent was cited by her preferred name and there is no doubt as to who the order affects...,.

Should she defy the order in HC2220/09 then contempt proceedings may be brought against her. This time she would have no excuse that the court order was not in her name.

The applicant is a duly registered corporate entity under the laws of this country. On 30 March 2008, following conciliation through an arbitrator, the dismissal of the respondent from amongst the ranks of the applicant's employees was confirmed.

As a result, the parties' formal relation came to an end.

At the time, the respondent was in possession of a vehicle belonging to the applicant. The applicant had requested that the respondent, some time prior to these sad events, use her own vehicle for the business of the applicant. In turn, the applicant undertook to have the vehicle serviced and repaired at its own cost. The vehicle required certain repairs, and, as a result, the respondent was given use of the applicant's vehicle on the understanding that it would be returned once hers had been properly repaired. When the relationship was terminated, the respondent's vehicle was still undergoing repair. Some time thereafter the applicant sent the respondent's vehicle to her with a request that its own be returned. The respondent refused and it is that refusal that has prompted the applicant to launch these proceedings for a rei vindicatio for the return of the vehicle.

The respondent has opposed the granting of the relief in question....,.

In casu, the respondent does not claim a right to retain the vehicle through an agreement to purchase the vehicle...,.Rather, she seeks to rely on what has been termed an antecedent agreement between the parties.

In his heads of argument, counsel for the respondent argued that the parties had an agreement which imposed consecutive obligations on each other. He contends that the applicant had to finance and service the respondent's motor vehicle to a satisfactory and roadworthy condition, facilitate its transfer into the respondent's name, and, thereafter, deliver it to the respondent. It was only then, so the argument goes, that the applicant would be entitled to have the Toyota Corolla returned to it. He relies on SA Crushers (Pty) Ltd v Ramdass 1951 (2) SA 543 for this submission. At p 546D-F SHAW J stated;

“Mr Cooper, for the respondent, submitted that the two obligations could not be separated in this way although practically they would have to be performed consecutively. The passage above cited from Mackenzie's case, indicates, however, that where the obligations fall to be performed consecutively, the party who must first perform is not entitled to withhold performance merely because the other party has not tendered performance pari passu or expressed his willingness to perform at a later date.”

I did not understand counsel for the applicant to challenge the correctness of this principle.

His contention, rather, was that there were no consecutive obligations imposed by the parties on the return to the applicant by the respondent of the vehicle in question and that this was a defence mounted by the respondent as an afterthought to the vindicatory claim.

It is necessary therefore to consider the facts.

The vehicle was a benefit afforded to the respondent in terms of a contract of employment with the applicant. That contract has since been terminated. The respondent has therefore to establish a defence to the claim by the applicant for the return of its vehicle to its possession. The respondent has contended that the applicant was obliged to repair, service and register in her name, the vehicle she had purchased from the former and which was still in its name. The respondent has not produced a written contract and seeks to rely on an alleged oral agreement which the applicant disclaims.

The return of the vehicle was claimed by way of a written communication to the respondent dated 6 October 2008 but delivered to the respondent on 8 October 2008. Her own vehicle was returned under cover of the letter in question. The respondent received and retained her own vehicle but refused to surrender the applicant's. She wrote a note in which she raised the lack of insurance on the vehicle (hers), the lack of a licence, and that the vehicle, presumably hers, had nothing to do with her contract as “GM Finance and Corporate Affairs.”

On 9 October 2008, acting on instructions from their client, the applicant's legal practitioners addressed a suitable letter to the respondent demanding a return of the vehicle. The letter received a prompt reply from the respondent's legal practitioners, who requested for an extension to 27 October 2008 for their client, the respondent, to have use of the vehicle.

The alleged contract now being sought to be relied on as a defence was not alluded to by the legal practitioners in question.

The request was acceded to by letter dated 21 October 2008, and, on 22 October, the respondent's legal practitioners then wrote a letter to the applicant's legal practitioners requesting an indefinite extension for their client to return the vehicle. This was turned down and a repeated demand was made for the return of the vehicle ultimately resulting in the launching of these proceedings by the applicant for the recovery of its vehicle.

The respondent's use of the applicant's vehicle was by virtue of her employment with the applicant and her right to retain possession terminated with her dismissal from employment. She did buy a vehicle from the applicant and whatever obligations the applicant assumed under that agreement, those obligations were not tied to the respondent's use of her officially allocated vehicle as a member of staff of the applicant.

It is clear on the facts that the obligation by the applicant to service and repair the respondent's vehicle arose from the use by the respondent of her vehicle on the applicant's business and that this usage had occurred prior to her being suspended from duty. In any event, the communication from herself and her legal practitioners, prior to the institution of these proceedings, does not establish an oral agreement as alleged by her for the rectification of defects on her vehicle. There was no demand by her for the alleged service and repairs to be effected before she could return the applicant's vehicle. Indeed, as submitted by counsel for the applicant, repairs to her vehicle was not a condition upon which the parties had agreed for her to retain the applicant's vehicle. Rather, she is seeking to justify her retention of the vehicle on the basis of claims arising out of her contract of employment which she has not even litigated upon.

In the premises, I find that the applicant is entitled to an order as prayed....,.

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.

The Tribunal gave its judgment in favour of the applicants on the 28th of November 2008. They now seek an order for the registration of the decision of the Tribunal for the purposes of its enforcement in Zimbabwe....,.

Notwithstanding the plethora of affidavit evidence and written legal argument filed of record, counsel for all of the parties herein concur that there are essentially two issues for determination in casu:

(i) The first is whether the SADC Tribunal was endowed with the requisite jurisdictional competence in the case before it....,.

Jurisdictional Competence

It is trite that any jurisdictional fact which negates the existence of any obligation imposed by a foreign judgment constitutes an effective bar to the actionability of that judgment. One such obvious negativing fact would be that the party impeaching the judgment owes no duty to obey the command of the court or tribunal purporting to impose the obligation.

The respondents' position on the status of the Tribunal is as follows:

The Agreement amending the SADC Treaty (the Amendment Agreement), which was signed on the 14th of August 2001, never entered into force because it was not ratified by Zimbabwe or by the prescribed number of SADC Member States. Therefore, in terms of Article 22 of the Treaty, as unamended, the Protocol of the Tribunal still requires the ratification of a Member State in order for that State to be bound by it. Since Zimbabwe has not ratified the Protocol, it is not bound by it and is not subject to the jurisdiction of the Tribunal. Consequently, the Tribunal lacked the requisite competence to adjudicate Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007, and, therefore, its judgment in that case cannot be registered and enforced in Zimbabwe or anywhere else.

The Vienna Convention on the Law of Treaties (1969) is generally recognised as an authoritative restatement of established or emergent rules of international customary law on the subject of treaties: See BROWNLIE: Principles of Public International Law (4th ed.)…,.

Article 39 of the Vienna Convention on the Law of Treaties (1969) states the general rule regarding the amendment of treaties, as follows:

“A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.”

Part II of the Vienna Convention on the Law of Treaties (1969) regulates the conclusion and entry into force of treaties, and, by dint of Article 39, it also governs the conclusion and entry into force of treaty amendments. Article 11 prescribes the means of expressing consent to be bound by a treaty and provides that:

“The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.”

Article 24 of the Vienna Convention on the Law of Treaties (1969) governs the entry into force of treaties and, in its relevant portions, stipulates that:

“1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.”

Taken together, these provisions of the Vienna Convention on the Law of Treaties (1969) illustrate the flexibility inherent in the conclusion and entry into force of treaties as well as amendments thereto.

In particular, Article 11 makes it clear that the consent of States to be bound by a treaty may be expressed by signature, exchange of instruments, ratification or accession, or by any other means if so agreed.

Thus, the States concerned are at liberty to agree on the conclusion of a treaty by means other than the traditionally accepted procedure of signature followed by ratification or accession.

It is therefore perfectly possible for a treaty, or an amendment of the treaty, to be adopted and enter into force for all the adopting States instantly, without further ratification or any other formality, if that is the means of adhesion agreed to by those States: see AUST: Modern Treaty Law and Practice (2000)…,.

Turning to the SADC Treaty itself, Articles 39, 40 and 42 of the Treaty deal, respectively, with signature and ratification of and accession to the Treaty.

Article 41 governs the entry into force of the Treaty as follows:

“This Treaty shall enter into force thirty (30) days after the deposit of the instruments of ratification by two-thirds of the States listed in the Preamble.”

Article 39 makes it abundantly clear that ratification by two-thirds of the signatory States was a pre-requisite for the entry into force of the Treaty itself.

However, amendments to the Treaty are governed by an entirely different procedure, prescribed in Article 36.1, as follows:

“An amendment of this Treaty shall be adopted by a decision of three-quarters of all the Members of the Summit.”

The term “Summit” is defined, in Article 1 of the Treaty, as:

“…, the Summit of the Heads of State or Government of SADC established by Article 9 of this Treaty.”

Article 10 of the Treaty (in its un-amended form) is instructive as to the composition of the Summit and its decision-making process. It provides as follows in its relevant portions:

“1. The Summit shall consist of the Heads of State or Government of all Member States, and shall be the supreme policy-making institution of SADC.

3. The Summit shall adopt legal instruments for the implementation of the provisions of this Treaty…,.

8. Unless otherwise provided in this Treaty, the decisions of the Summit shall be by consensus and shall be binding.”

The combined effect of these provisions is that an amendment to the Treaty is not concluded by way of ratification by Member States but is adopted by a decision of not less than three-quarters of the Summit, comprising the Heads of State or Government of all Member States. Furthermore, the decision of the Summit, to adopt the amendment, is binding on all Member States. The amendment becomes operative immediately thereafter and there is no need for any further ratification by Member States in order to bring the amendment into force and effect.

Turning to the Amendment Agreement itself, the Preamble thereto, in its relevant portions, declares that:

“We, the Heads of State or Government of [all the Member States]…, HAVE AGREED, pursuant to Article 36 of the Treaty, to amend the Treaty as follows:…,.”

Article 32 of the Agreement provides for its entry into force, in conformity with Article 36.1 of the Treaty, as follows:

“This Agreement shall enter into force on the date of its adoption by three-quarters of all Members of the Summit.”

Article 22 of the SADC Treaty, both in its original and amended form, requires the signature and ratification of any Protocol approved by the SADC Summit.

Article 9.1(f) as read with Article 16 provides for the establishment of the SADC Tribunal. Article 16.2 as amended provides that:

“The composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol which shall, notwithstanding the provisions of Article 22 of this Treaty, form an integral part of this Treaty, adopted by the Summit.” [amendment underlined]

The meaning and effect of the amending words are clear, to wit, the Protocol of the Tribunal forms an integral part of the Treaty without the need for its ratification by the Member States.

To clarify this position and dispel any doubt on the matter, all the Member States, including Zimbabwe, concluded and signed the Agreement Amending the Protocol on Tribunal on the 3rd of October 2002.

By virtue of Articles 16 and 19 of this Agreement, Articles 35 and 38 of the Protocol of the Tribunal, which required ratification of the Protocol by two-thirds of the Member States, were repealed in toto, thereby obviating the need to ratify the Protocol.

To conclude this aspect of the case, my assessment of and determination on the jurisdictional capacity of the Tribunal is as follows:

On the 14th of August 2001, the Amendment Agreement was signed by 13 out of the 14 Heads of State or Government of the Member States, including Zimbabwe, thereby concluding the process of its adoption and entry into force.

In my view, there can be no doubt whatsoever that the Agreement was duly adopted in terms of Article 36.1 of the Treaty and that it became binding upon all the Member States on the date of its adoption.

It follows that, as from that date, by virtue of Article 16.2 of the Treaty, as amended, the Protocol of the Tribunal constituted an integral part of the Treaty and became binding on all Member States without the need for its further ratification by them. It also follows that the Republic of Zimbabwe thereupon became subject to the jurisdiction of the Tribunal and that the jurisdictional competence of the Tribunal in Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007, which was heard and determined in 2008, cannot now be disputed.

The respondents' position, in this regard, premised on the ex post facto official pronouncements repudiating the Tribunal's jurisdiction, is essentially erroneous and misconceived.

Their position is rendered even more untenable by the conduct of SADC governments, including the Government of Zimbabwe, subsequent to the adoption of the Amendment Agreement, which conduct has been entirely consistent with the provisions of the Treaty as amended by the Agreement. I refer, in particular, to the establishment of the Troika system and the Organ on Politics, Defence and Security Co-operation, in terms of Articles 9 and 9A of the Treaty (as amended by Articles 9 and 10 of the Agreement), and note that Zimbabwe has fully participated, together with all the other Member States, in the Troika system and the business of the newly constituted Organ.

It seems to me legally unsustainable to espouse a major facet of the amended SADC regime and to simultaneously eschew those features of the same regime that are deemed to be politically inexpedient and unpalatable.

The plaintiff issued summons for the ejectment of the defendant from House No.14 Msasa Park Drive, Msasa Park, Harare. The basis of the plaintiff's claim is that he is the sole owner of the immovable property.

He avers that upon the termination of an unregistered union between him and the defendant, the defendant, who had resided at the said premises during the subsistence of and on the basis of the unregistered customary union, refused to vacate the plaintiff's house and remains in unlawful occupation thereof.

The defendant counterclaimed for a fair division and distribution of all the assets which the parties acquired during the subsistence of their unregistered customary union.

The basis, as amended, of the defendant's counter-claim is that the nature of their customary union was such that it formed a tacit universal partnership and should thus be governed by General Law as opposed to Customary Law. The defendant further avers that in the event that customary law governs the proprietary interests of the parties the plaintiff would be unjustly enriched should he retain as his sole property the assets acquired through the joint and complementary efforts of the parties during the subsistence of their union. It would also cause an injustice to the defendant who contributed both directly and indirectly to the acquisition of the movable and immovable property.

The defendant's claim regarding the immovable property known as Stand No.700 Chadcombe Township, Salisbury Township, commonly known as House No.14 Msasa Drive, Msasa Park, Harare, is that it be shared equally between the two parties with each party getting a fifty percent (50%) share. She also has an itemized proposed distribution of the movable property.

An amended joint pre-trial conference minute dated 9 September 2009 and signed by both parties' legal practitioners records the following as the issues referred for trial:

“1. Whether or not the following movable property should be shared between the parties -

(a) 5 door frames.

(b) 1 window frame.

2. What percentage of the value of House No.14 Msasa Park Drive, Msasa Park, Harare should be paid to the defendant before she vacates the property?”

It also records the following admissions:

“(a) Both parties admit that a tacit universal partnership existed during the subsistence of their union.

(b) Both parties accept and admit that an order for the distribution of their movable property be made in accordance with the settlement contained in the 'minutes of settlement' dated 18 August 2009 and filed of record.”

A document headed 'Minutes of Settlement Conference' dated 9 September 2009 and signed by both parties' legal practitioners records and itemizes the movable assets that the parties agreed ought to be awarded to each party and this will be reflected in the court's order.

It also records that the parties failed to agree on how to share five door frames and one window frame.

It records that both parties agreed that House No.14 Msasa Park Drive, Msasa Park, Harare should be distributed and shared between the two of them. It records that the parties agreed that the immovable property was valued at USD45,000. It also records that the parties agreed that the defendant should vacate the property upon being paid her share therein. It records that the plaintiff's stance was that the defendant's share in the immovable property does not exceed eight percent (8%) of its aforesaid agreed value while the defendant's stance was that her share is 40% of the agreed value. It also records that this issue remained unresolved by the parties.

It is clear, from a perusal of the amended joint pre-trial conference minute, that the parties came to an agreement that a tacit universal partnership existed during the subsistence of their unregistered customary law union. It appears that it is on that basis that they proceeded to negotiate and agree on the distribution of the movable assets as listed in their 'Minutes of Settlement Conference'.

It is noted that this is so despite the stance taken by the plaintiff, in his pleadings, particularly in response to the defendant's counterclaim wherein he disputed that there was a tacit universal partnership between them and further contended that the defendant had no claim to the property which he claimed was all acquired through his single-handed efforts and without any contribution from the defendant. It is also noted that it is on the same date when this agreement was reached that the defendant's amendment to her counterclaim was filed so as to plead tacit universal partnership or unjust enrichment in the alternative.

In view of the agreement between the parties, I shall proceed to determine the defendant's counterclaim on the basis of the principles applicable to tacit universal partnerships.

The plaintiff issued summons on 23 July 2007 claiming the following relief:

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

As regards the claim of the wife, who was joined as the fourth defendant, the plaintiff contended that she had no legal basis for her claim.

She was not a party to the agreement between her husband and the City of Bulawayo. She was not a co-owner of the flat. Documents at the Council offices only reflect the name of Christopher Mangisi. Her name does not feature at all. For instance, the plaintiff produced a City of Bulawayo Tax Invoice in relation to the flat which bears the name of Christopher Mangisi only.

The fourth respondent's cross-examination of the plaintiff established that she was well aware of the sale of the flat. She was the one who actually approved the reduced price of $210,000= as the plaintiff was paying it in full. When she suggested that Ms Moyo was not her lawyer, the plaintiff reminded her that when he showed her and her husband receipts reflecting the payments she had made to the lawyers for the evictions of the tenants from the flat she was happy like her husband.

Her suggestion that she had not consented to the sale of the flat is clearly false and must be rejected.  The court finds that she actively took part in the sale of the flat. Each time a decision was to be taken she was there. She made the final decision that the flat should be sold at the reduced price of $210,000= as payment was in full. She was present when the plaintiff brought the cheque for $250,000= to Mangisi & Associates and was present when the plaintiff brought the receipt for the payments made to the lawyers as eviction fees.

The respondent had categorically stated that he was only prepared to respect the leadership of the party elected at the January 2011 congress once the High Court in Harare had made its ruling in the application referred to…,. 

Yet he is not a party to that application and did not apply to the court seeking a joinder. Neither has he himself challenged the validity of the congress in any court of law, but merely wants to associate himself with an application launched in the High Court by other people. It was concluded that he was estopped from challenging the validity of the congress and from disrespecting the leadership voted by the congress…..,.

It was asserted that the mere filing of an application did not in itself invalidate the resolution of the congress and to that extent until this court has issued its order in that matter the leadership of the party, as elected at the congress, can be the only possible leadership of the party. 

There is merit in that assertion.

The respondent attended the congress and fully participated without demur but still wants to disassociate himself with the very congress by claiming not to recognize it.

Not only did he fully participate in the congress but he accepted the outcome of the congress until the party decided to reshuffle him from the position of Deputy Prime Minister.

The record also shows that, through correspondence, the defendant was always aware who Gloar Design Team was. 

This is an application for stay of execution.

The first respondent was an Executive Dean in the Faculty of Commerce and Law of the applicant. At the end of his fixed term contract as Dean, a dispute arose on his status. The parties failed to agree on whether he automatically assumed his former post or whether his contract of employment was terminated.

Conciliation failed and the matter was referred to arbitration.

On 10 January 2011, the applicant was ordered to reinstate the first respondent as a Senior Lecturer, and, in the alternative, to negotiate his exit package in lieu of reinstatement. It was further directed that they approach the arbitrator if they failed to agree on the exit package.

On 2 February 2011, the applicant noted an appeal to the Labour Court against the arbitral award and applied for interim relief seeking the suspension of the award pending the appeal.

While these were pending in the Labour Court, the first respondent requested for the quantification of the exit package in lieu of reinstatement.

On 22 August 2011, the arbitrator quantified the amount in the sum of US$77,302.

On 26 September 2011, the applicant filed a combined application for review and an appeal with the Labour Court against the quantification.

On 27 September 2011, the first respondent, on notice to the applicant, applied in the High Court for the registration of the arbitral award. He served the applicant with the application for registration of the arbitral award on that date.

The applicant did not oppose the registration.

Instead, aware of the application in the High Court, it filed an urgent chamber application in the Labour Court, on 5 October 2011, seeking interim relief for the suspension of the arbitral award of 22 August 2011. The interim relief was granted by the Labour Court on 31 October 2011.

In the meantime, the award was registered by the High Court on 15 November 2011.

On 26 January 2012, the second respondent served a Notice of Attachment to remove the applicant's property for execution without any notice period.

The applicant launched the present application on 27 January 2012. I set it down for hearing on 1 February 2012.

The first respondent raised four preliminary points contesting the urgency of the matter.

I deal with each in turn.

(i) The first preliminary issue raised is on the authority of the deponent to the applicant's affidavit to depose to such an affidavit on behalf of the applicant.

Counsel for the first respondent submitted that where a natural person acts for an artificial person, he or she must establish the authority so to act. She relied on the sentiments expressed by ADAM J in Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218 (H)…, part of a quotation in Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) ZLR 347 (C)…,.

Counsel for the applicant relied on the same quotation to argue that the first respondent had not established that the applicant is not properly before the court. The portion he relied on…, reads:

“The best evidence that the proceedings have been properly authorised would be to provide, by an affidavit, made by an official by the company, annexing a copy of the resolution, but, I do not consider that that form of proof is necessary in every case. Each case must be considered on its own merits and the court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some un-authorised person on its behalf.

Where, as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the court, then, I consider that a minimum of evidence will be required from the applicant: cf Parsons v Barkly East Municipality 1952 (3) SA 595 (E); Thelma Court Flats (Pty) Ltd v McSwigin 1954 (3) SA 457 (C)."

I am satisfied, that, to insist on a resolution from the applicant, that it resolved that the deponent file the founding affidavit on its behalf, would be carrying formality too far.

The applicant is the Director, Legal Services of the applicant.

Counsel for the first respondent conceded that she has, in previous litigation between the parties, filed founding affidavits on behalf of the applicant. There has been protracted litigation between the parties.

I am satisfied that the application is that of the applicant and not of the deponent to its founding affidavit.

The first preliminary point must fail.

The other defence, that the second defendant cannot be jointly and severally liable with the first defendant, is a long shot in the dark. 

The two defendants are subsidiary and holding companies respectively.

The Bank's further position, argued on its behalf, was that the applicant is estopped from making her claim because she did nothing for more than a decade to let the world know that she has rights which she now seeks to assert….,.

The customs, traditions and cultural argument

It is with regard to the applicant's failure to act that counsel for the applicant draws on the negative effects of culture and tradition to locate her inaction. His argument is that the applicant being a married woman for whom culturally 'lobola' had been paid, she could not have acted as freely as it is assumed, to have the house later registered in her name. This is because its payment supposedly results in 'power over' the woman for whom it is has been paid. He thus asks this court to be guided by section 80(3) of the Constitution which elaborates rights of women and states as follows regarding laws, customs, traditions and cultural practices which infringe the rights of women:

(3) “All laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement.“

Whilst I acknowledge this argument that culture and tradition may indeed act as strong factors militating against action and that her in-action in this case may be an indicator of the power imbalances within a marriage, particularly where 'lobola' has been paid, the reality is complex and is certainly not so linear as to lead to the inference that it is culture and tradition that bear the responsibility for inaction. The payment of “lobola” is also a cultural practice of choice. The formal law is, admittedly, far from being centre stage in the everyday lives of people in our normatively plural African context. Religion and culture are important and may be far more central tenets upon which women negotiate marriage as well as their everyday existence. It is these equally powerful “social fields” that in reality may have more gravitas in people's lives than the law. Moreover, some women may indeed harbour imagined fears of being single as a result of divorce in a context where the socialisation puts the status of being married at a premium. Some may not wish to sacrifice their marital status on the altar of assertiveness. Despite its widespread reality, the status of being single attracts the social stigma somewhat worse than that of a leper especially in religious circles. Regrettably too, an inordinate amount of energy is often expended denouncing 'rights activism' at social gatherings such as kitchen tea parties and some women's church meetings which urban women attend and tune in on societal expectations regarding appropriate marital behaviour. Furthermore, inaction may simply be because a person could not have foreseen that this kind of situation would arise. Also, legal consequences may be un-appreciated by most women until trouble comes knocking at the door. Nonetheless, the reality is also that in a modern social setting, the options in the nature of social messages being channelled are all too often legion. As such, choosing to operate within a cultural or religious bubble is significantly also a choice which the court cannot ignore. Women are not an un-differentiated whole. Just as there are women who are hampered by the power and pull of tradition and culture from taking action, there are just as many who assert their rights in spite of societal expectations. Married women, in particular, are constantly bombarded with messages surrounding law and marriage. There are a plethora of women's organisations working on women's legal rights issues ranging from organisations such as Zimbabwe Women Lawyers Association (ZWLA), Women and Law in Southern Africa (WLSA); Women's Action Group (WAG) to the weekly televised “Mai Chisamba Show” a talk show which examines a range of social issues mostly those impacting on women and children.

Thus, women have choices.

Women make choices. Others, even when they have the knowledge, may still choose to adhere to the influences of religion and culture. Others still may move from silence to voice and make a deliberate choice to confront patriarchy in the face by recognising that “she whom patriarchy calls bad is, in fact, good”. They thus use their knowledge to assert their rights and consciously fashion alternative realities. In this regard, many have heeded the call by women's groups to approach marriage as a partnership from the onset and to have the matrimonial home registered in the names of both spouses and also not to shy away from owning their own property. It would therefore be inaccurate to portray the vibrational pulse of women's engagement with issues that affect them as being at the level of simple 'victimology' purportedly emanating from culture and tradition. This would be pure expediency to facilitate the applicant's case.

The applicant herself makes a substantial issue of being well-educated, a reality that could, from a logical perspective, have been harnessed in her favour to familiarise herself with the marital consequences of her marriage and to act accordingly to protect her rights.

This court is being asked to believe that a woman of her calibre, not only highly educated but of economic prowess and running an entire organisation, nonetheless lacks personal empowerment to navigate culture and tradition. This is for even the minimum act of having at least insisted that she keeps the title deed, given her claim to having ploughed money on her own into the property. That she did not act is indicative of her own choice and can hardly be laid on the door of any supposed unconstitutionality of culture and tradition. Also if, as counsel for the applicant has argued on behalf of his client, that she may have subsequently failed to take action to have the property registered in her name because of cultural constraints, when she clearly could have done so to avert the problem at hand, then the core problem has nothing to do with the application of the law on real rights or its supposed unconstitutionality. Knowing where the problem lies is vital in adopting the correct strategy. Where the law is in place that could have been harnessed to prevent the problem in question and where, despite this reality, action is not taken, this has everything to do with changing attitudes that prevent women from being assertive. It is about giving meaning to 'empowerment' which eventuates when women who not only know their rights but also take steps to assert them and actively to change their reality. The strategy for this to occur is thus awareness and consciousness raising. Locating the applicant's problem in this regard as one of empowerment and consciousness-raising rests on appreciating the symbiotic relationship and interplay between the substantive, structural and cultural components of any legal system. Where a problem emanates from the content and substance of the law, the strategy is generally law reform. Where it relates to its structural component, that is as arising from the law's application by the courts and other related agencies, then the strategy is generally advocacy and representation within these structures. Where the problem relates to the cultural component, as exemplified by attitudes and shared values, the strategy is education (I draw here on the general structure and interactions of the of the legal system articulated in the book: M SCHULER (Ed) Empowerment and The Law: Strategies Of Third World Women (Washington: OEF International) 1986…,.).

The issue of inaction on the applicant's part is not about the content or the application of the law within its structures. It is about attitudes and personal choices.

The applicant, in her affidavit, did not proffer the payment of 'lobola' as the explanation for her in-action. It would be far too simplistic to lay the blame on culture and tradition as primary causes for inaction without any real evidence having been articulated of how these realities actually played themselves out in the applicant's case. It is hard to imagine that a woman in her position who, by her own admission, is economically independent, would have been cowed by the payment of what would today in all probability amount to no more than a few hundred dollars of 'lobola'. Her husband's evidence is also conspicuous by its absence and tends to bolster counsel for the first respondent's argument of likely collusion. Whether the absence of his evidence is from collusion or from any sense of guilt as to the consequences that have befallen the family as a result of his action, or some solace in having the blame thrust at the Bank, the reality is that its absence takes no further the wife's assertions that she is owns the whole property. 

The affidavit from the sellers of the property cannot be the sole foundation of her factual claim and neither can counsel's speculation regarding the effects of culture or tradition on her failure to assert her rights.

Asked during cross-examination whether there was something in need of attention at the premises, Mr Chand, the appellant's Managing Director, said 'yes'. Surely, having accepted that some portions were in need of attention, the appellant cannot then argue that the damage to the property fell within the ambit of 'fair wear and tear'.

That argument is flawed….,.

Further, the appellant accepted the BCHOD report which made a finding that the damage was beyond fair wear and tear….,. That, again, shows that the appellant was somehow aware of the fact that the damage was beyond fair wear and tear. To then allege that the court a quo erred in awarding the claim for payment of costs of repairs is contradictory.

The court a quo relied on this acceptance of the BCHOD report in arriving at its conclusion. Thus, it cannot be faulted in anyway.

In this case, where the defendant was saying the damage was normal fair wear and tear, and the plaintiff saying it was more than that, someone else had to come forward and say which was which. Several experts did.

Brian Colquhoun Hugh Donnell & Partners (BCHOD) was the first.

It had been commissioned by the plaintiff. It concluded that the damage went beyond fair wear and tear. At first, the defendant's stance was to reject the BCHOD report wholesale. However, it subsequently made a u-turn and was prepared to accept it.

Therefore, on this alone, it is safe to conclude that it became common cause that the damage to the premises had gone beyond fair wear and tear.

I will hasten to point out that the defendant's own conduct, between the period 2004 and 2011, does not show that they believed that the hyper-inflationary environment relinquished their obligations in terms of the contract, but, rather, that the sums due had to be recalculated. I say so because, in 2004, they offered to pay the plaintiff ZW$207,000= (Zimbabwean dollar); they did not say to him that it was no longer possible to meet their obligation. Again, in 2011, they offered the plaintiff US$167=, meaning right up to 2011, they still knew they had a duty to meet their part of the deal.

By the defendant's own conduct, it cannot be held that the contract was no longer possible to perform….,.

In any event, if Savannah had issues with the way Interfin had handled the Bankers Acceptances (BAs) one would have expected it to protest to both Interfin and Alshams at the earliest available opportunity - which was 7 March 2012.

Its silence is consistent with the fact that it knew and appreciated the exact nature of the instrument it had signed.

I must state that I agree with counsel for the first respondent when he submitted that the central issue is that the applicant has a hugely disproportionate number of cattle on the farm. This, it appears, is the major grievance by the first respondent's members.

However, this situation has been allowed to exist for years and I am of the view that the first respondent will not suffer any appreciable prejudice pending the confirmation or discharge of the interim relief.

It is common cause that after the departure of the lessee the respondent negotiated a temporary reprieve with the appellant's manager; paid rentals to the appellant - only to later stop payments and challenge the appellant's rights….,.

The respondent was estopped from resisting ejectment…,.

The applicant has approached this court on an urgent basis seeking the following relief -

“TERMS OF THE FINAL ORDER

1. That you show cause to the Honourable Court, if any, why a final order should not be granted in the following terms:

(a) That the use of the applicant's title deeds by the 1^st respondent, in transacting with the 2^nd respondent, without the consent of the applicant, be and is hereby declared unlawful.

(b) That the applicant's immovable property, being Stand 2169 Mabelreign Township measuring 981 square metres, be and is hereby released from execution.

INTERIM RELIEF SOUGHT

Pending determination of this matter, the applicant is granted the following relief:

(a) That the order to stay execution of Case No. HC5914/12 be and hereby granted pending finalization of rescission of judgment in case HC1122/15.

(b) Costs on a higher scale be borne by the 1^st and 2^nd respondents jointly and severally.

SERVICE OF PROVISIONAL ORDER

This provisional order may be served on the respondents or their legal practitioners by an employee of the applicant's legal practitioners or the Deputy Sheriff.”…,.

Annexure 8 is a General Power of Attorney purportedly signed by the applicant himself on 13 August 2011 authorising one Kefasi Machaya to use the applicant's title deeds for the immovable property as a security for a debt owed to the first respondent.

This power of attorney is buttressed by an affidavit deposed to by the applicant confirming his authority to Kefasi Machaya to use the title deeds….,.

The law is clear that once a fact is conceded, no evidence needs to be called to prove such fact. The law is also settled that once a concession on an issue of fact is made, such concession cannot be withdrawn, except on application and good cause shown. This position is so well established in our law that no authority need be cited in its support.

A concession on an issue of law is however different. It is not binding if it is not properly or correctly made.

The rationale for this position is obvious. A court cannot be bound by a concession on the law if such concession is not correct in terms of the law. This principle is based on public policy. Public policy demands that a court must be enabled to make a correct determination of the issues before it based on the correct law applicable and not on some incorrect concession made by one of the parties. It is for this reason that a question of law may be advanced, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is raised. Where it is not clear that the point has been fully investigated, the court will not, as a general rule, allow a new point of law to be taken for the first time on appeal. The court will however allow such a point where the point is canvassed in the pleadings, there is no unfairness to the other party, the facts are common cause, and there is no basis for considering that other or further evidence would have been produced that could have had an effect on the point in question.

In De Beers Holding v Commissioner for Inland Revenue 1986 (1) S.A. 8.33 CORBETT JA considered the effect of a concession on a question of law not supported by the un-disputed facts and which was wrongly made. The learned judge concluded…,:

“Mr. Welsh, although contending that the concession was rightly made, did not suggest that it stemmed from anything other than an erroneous appreciation of the legal position. He therefore could not suggest that this court was precluded from dealing with the matter on the basis of the undisputed facts. Accordingly, there is no reason why this court should not give what it considers to be the right decision on the facts….,.”

In B.S.N.L. and Others v M/S Subash Chandra Karchan and Another 2006 (8) SCC 279, a decision of the Supreme Court of India, dated 13 September 2006, the Court remarked:

“A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again, subject to just exceptions, they cannot, at a later stage, resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client.” (sic)

In (1) Minister of Local Government, Rural and Urban Development N.O. (2) Chairperson of the Disciplinary Committee, City of Harare, Munamato Mutevedzi N.O. v Silas Machetu (2) Maxwell Katsande (3) Paul Gorekore (4) Johnson Zaranyika SC34-12, this Court made much the same remark. It stated…,.:

“…,. The court erred in interpreting the evidence before the second appellant…,. It also erred in relying on a concession which was improperly made by counsel for the appellants…,.”

The position must therefore be accepted as settled in this jurisdiction that a wrong concession on a point of law is neither binding on the party that made it nor on the court hearing the matter.

Before the expiry of the Tribute Agreement on 31 December 2015, the first respondent did not notify the applicant in writing three (3) months prior to that date of her election in terms of clause (1)(b) supra. Despite this default, the first respondent continued to mine on the claims without an agreement. The applicant offered the first respondent a new agreement but the latter refused to sign it prompting the applicant to enlist the assistance of the Zimbabwe Republic Police - to no avail. Faced with this hurdle, the applicant issued a written notice to vacate to the first respondent through her lawyers, Majoko & Majoko, on 6 October 2016. The first respondent's lawyers responded to that notice in the following terms:

“….,. A brief history, we believe, will assist in the understanding of our client's position. Our client has been mining from Legion since about 2003, having done so under tribute from Falcon Gold Zimbabwe Ltd.

Discussions involving the Ministry of Mines and Mineral Development were held with Falcon Gold and our client as a result of which it was agreed that the claim would be registered in our client's names and our client had and there is evidence of this written understanding, from so far back as 2007, been awaiting formal transfer and registration of the claims into her names.

If there were any changes in this understanding it was not communicated to our client. She has been in occupation and working the claims on the bona fide understanding that the claims were, to all intents and purposes, hers, awaiting only formalization of ownership of the claims.

At no time was our client advised, as she would have been entitled, of any change in the ownership of the claims from Falcon Gold to yourselves. You will appreciate, in the circumstances, that our client cannot, without prejudicing her rights, accede to your demand that she vacate the claims, until she has received formal communication from the Ministry of Mines and Falcon, that what was agreed upon regarding the claims has since been changed. On receiving such communication, if she will, our client will take advice and only then will she reply substantively to your demand. Until then she will remain on the locations.”…,.

The parties continued to engage each other through their legal practitioners on 12 and 13 January 2017.The first respondent appeared to have accepted to negotiate terms of a new Tribute Agreement until 20 January 2017 when she refused the offers proffered by the applicant and insisted on her earlier position that she had a right to anticipate transfer of registration of the claims into her name.

Frustrated, the applicant then filed this application on 30 January 2017 praying for the relief referred to above….,.

In the present case, the facts that cannot be disputed are that the applicant is the registered owner or holder of the claims in dispute. The five certificates of registration are on pages 29–33 of the application. Also, in terms of the Tribute Agreement referred to earlier the applicant is the “Grantor” while the first respondent is the “Tributor”. For approximately three and a half years, the first respondent was working the same claims mining gold and other minerals therefrom against payment of royalties to the applicant. She stopped paying in October 2016 following a dispute over the formula to be used to calculate royalties. The parties then failed to reach an agreement and the applicant filed this application.

Counsel for the respondents failed to direct us to any evidence that the appellant acted in a way that could have resulted in the respondents forming a reasonable and legitimate expectation of re-engagement beyond the duration of their fixed term contracts. In the absence of evidence showing that the employer guaranteed an employee employment notwithstanding the former employee's performance in the interview, it cannot be said that by merely inviting employees for an interview the employer gave the employee reason to entertain a legitimate expectation for re-engagement.

The evidence presented by the appellant to the Retrenchment Board to establish its incapacity to pay the respondents comprises two CBZ Bank statements and its financial statements from 2009–2015….,.

Counsel for the respondents submits that the CBZ Bank statements do not show the aggregate of the appellant's assets. Furthermore, the first statement alluded to above shows several substantial credits to the bank account and there may have been further credits after the last stated entry for 31 December 2016. Counsel for the respondents also refers to a letter dated 3 June 2015 from the Chairman of the appellant's Works Council written to the Retrenchment Board in support of the proposed retrenchment of 18 employees. The reason given then for that retrenchment was stated to be the fact that the appellant “has totally changed its Business Strategy and Operating Model”. There is nothing in that letter to indicate that the appellant was unable, at that time, to pay the proposed retrenchment packages or to viably conduct its financial affairs.

For the appellant to succeed in proving estoppel, it has to prove, and the authority for this proposition is the case of Andrew Phillips (Pvt) Ltd v GDR Pneumatics (Pvt) Ltd 1986 (2) ZLR 65 (SC) 67, that the respondents or their officers made a representation in word or deed which might have reasonably misled the appellant; that the appellant was misled; and that the representation induced the appellant to act as it did....,.

In casu, the two letters, the conduct of the second respondent and his officers, in classifying the base station components as 'base stations' and the passage of time before the respondents sought to set aside the classification, all tend to buttress the appellant's case. The appellant cannot, in the circumstances, be faulted for believing that the base station components that it imported were correctly classified as base stations and were therefore duty-free. This was an administrative decision by the respondents which decision is neither ultra-vires nor unlawful. The submission that, in these circumstances, there is no barrier to the application of the doctrine of estoppel thus finds favour with this Court.

The fact that the respondents had been making the same classification in the same way for fifteen years and now sought to reverse the classification at this stage was not satisfactorily explained away by the respondents.

The defence of estoppel was explained by McNALLY JA in Mashave v Standard Bank of S.A. Ltd 1998 (1) ZLR 436 (SC)…, as follows:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him as against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C.

The innocent purchaser's only defence is estoppel.

Estoppel depends upon an allegation that a representation was made by the owner/claimant. In Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A), Corbett JA (as he then was) said at 291:

'The essence of the doctrine of estoppel by representation is that a person is precluded, i.e estopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, vol 9 para 367 and the authorities there cited). The representation may be made in words, i.e expressly, or it may be made by conduct, including silence or inaction, i.e tacitly (Ibid para 371); and, in general, it must relate to an existing fact (Ibid para 372).'”

See also Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (A)…,.; Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A); Oakland F Nominees (Pty) Ltd v Gelria Mining & Invstm Co Ltd 1976 (1) SA 441 (A); Jones & Ors v Trust Bank of Africa Ltd & Ors 1993 (4) SA 415 (C)…,.; Basson t/a Repcomm Community Repeater Svcs v Postmaster General 1994 (3) SA 224 (SE)…,.; RABIE, The Law of Estoppel in South Africa…,.; MILLER, The Acquisition and Protection of Ownership…,.; VISSER and G POTGIETER, Estoppel: Cases and Materials….,.; SILBERBERG & SCHOEMAN's The Law of Property 3ed…,.; GIBSON's SA Mercantile & Company Law 6ed…,.

On 13 June 2014 the applicant filed an urgent chamber application for an order of spoliation. The order was sought in respect of a farm called Glen Avilin Estate.

What triggered the application were the events that had occurred on the farm on 12 June 2014….,.

In their opposing affidavits the respondents strenuously denied that they had despoiled the applicant. They maintained that the events of 12 June 2014 had merely been a once-off ceremony for the purpose of handing over the ownership of the farm to the first respondent symbolically. Mr Birditt had been invited to the ceremony. He had come with his lawyer. However, both had left before the proceedings had even started. The respondents said it had been a peaceful ceremony. No force had been used or shown. Everybody had left after the proceedings had been concluded. The temporary shelter had been dismantled. The respondents said the farm had been compulsorily acquired by Government way back in May 2002 in terms of the land reform programme. Over the years it had become derelict due to neglect. The applicant's donors had dwindled. The farm had become prone to illegal land invaders from the surrounding villages. On 10 February 2014, Government had officially allocated the farm to the first respondent. However, neither Government nor the first respondent had yet taken occupation. It was said an application to evict the applicant from the farm was pending. But guards had been posted to the farm for security. They had been deployed in February 2014. The applicant had raised no issue over the presence of the guards. They interfered with no one.

At the hearing more facts came to light.

The applicant conceded the presence of the respondents' security guards on the farm since February 2014. It said at any given time there would be two guards around….,.

During submissions, counsel for the applicant said the application for spoliation was in fact predicated on the presence of those guards.

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society.

The truth of the matter is that these currencies had been circulating on what had been dubbed a 'parallel market' for quite some time. There are those who welcomed the formal adoption of those currencies as legal tender in this country which had been ravaged by the knock-on effects of super hyper inflation. Others bemoaned the symbolic annihilation of our currency which they associated with a corresponding perception of the annihilation of our national sovereignty. The majority of the people were perturbed by the effect of the introduction of the multi-currency system on their pensions, insurance policies, and life savings.

This case is about a group of workers who, between them, gave more than twenty years of loyal service to their employer. In terms of the pension policy that was in operation at the outset both employer and employees diligently contributed monthly to a pension fund.

The issue that falls for determination, put simply, is whether all sixty seven employees are entitled to challenge the determination by the employer as to what constitutes their basic annual salary for purposes of calculating their pension benefits. Depending on the answer to this question, the court will have to determine, further, whether these employees are entitled to demand further payments by the employer towards their eventual pensions.

At the heart of these issues lies the contentious issue of the effect of the introduction of the 'multi currency' system on the calculation of pension contributions which had previously been based on our local currency, and were now set to be calculated on the basis of the United States dollars, the currency that the employees were now remunerated in.

Some would say that the question ought to be holistically and definitively addressed by Parliament as a matter of policy. Others feel that it is simply a question of implementing the provisions set out in the relevant pension fund.

We have been asked to issue an interdict and a declaratur as to the parties' rights and obligations in terms of the rules of their pension fund.

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty six other applicants who attached supporting affidavits authorizing him to represent them.

The first respondent is a sugar cane growing and processing company duly registered in accordance with the laws of this country and the employer of the sixty-seven applicants.

To avoid confusion, the first respondent shall be referred to as TRIANGLE. The second respondent is the Triangle Senior Staff Pension Fund (to be referred to as TSSPF), a properly constituted pension fund, duly registered with the Commissioner of Insurance, Pension and Provident Funds Act (IPEC), in terms of section 6 of the Pension and Provident Funds Act [Chapter 24:09]. The Triangle Senior Staff Pension Fund (TSSPF) is governed by its rules (the Fund Rules).

The first applicant averred that the application before the court was brought in accordance with Rule 9 of the Triangle Senior Staff Pension Fund Rules which provides that a member or any person whose claim is derived from a member shall have the right to refer a dispute to a court of law in this country for determination.

The applicants had previously approached an arbitrator, Honourable J.T Mawire, in terms of the Labour Act [Chapter 28:01] to determine the dispute, and, on or about the 5^th of September 2013, the arbitrator found that he did not have the jurisdiction to determine the dispute between the parties.

It was submitted, on behalf of the applicants, that they had a clear right to the interdict and declaratur that they sought.

The first applicant averred that he became an employee of TRIANGLE on the 1^st of April 1980, and a member of the Triangle Senior Staff Pension Fund (TSSPF) on the 1^st of July 1996. As from the date of his membership to the Triangle Senior Staff Pension Fund, TRIANGLE commenced deducting his share of pension contributions from his basic salary. The applicant remains a member of the Triangle Senior Staff Pension Fund to date.

The first applicant averred, further, that in terms of clause 11 of his contract of employment, membership to the Triangle Senior Staff Pension Fund (TSSPF) became compulsory on the date of his appointment, and his contribution of 7% of his basic monthly salary was automatically deducted and forwarded to the Triangle Senior Staff Pension Fund (TSSPF), by TRIANGLE, every month. According to the Terms and Conditions of the employment of C Band staff (Loss Control Manager), as at 1 July 1996 the basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that:

“The basic salary is pensionable and the company currently contributes 13% to the Triangle Senior Staff Pension Fund.”

After the basic salary was a list of benefits which were to be paid on behalf of the employee on a 50% contribution basis, such as CIMAS medical aid and a drug scheme. Further benefits included an education allowance which was expressly qualified as being taxable.

The first applicant averred that, currently, in terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules, TRIANGLE is obliged to make a corresponding monthly contribution to the Triangle Senior Staff Pension Fund of 13.5% of the first applicant's basic monthly salary. On the basis of the aforesaid, the first applicant averred that he and his fellow applicants have a clear right to have a deduction of 7% of his basic monthly salary made and to have a corresponding 13.5% of his basic monthly salary contributed by TRIANGLE. Failure to match the first applicant's contribution would be a failure by TRIANGLE to abide by the Triangle Senior Staff Pension Fund Rules.

It was submitted that, in or about October 2000, the Managing Director of TRIANGLE, Mr. J. M. Cleasby, advised members of the Triangle Senior Staff Pension Fund (TSSPF) that it was closed to new entrants on the basis that its existing members would be given an option to transfer to a different pension fund, the Triangle Pension Plan (hereinafter referred to as The Money Plan). In November 2000, Mr. Cleasby wrote a letter to the members of the Triangle Senior Staff Pension Fund and advised them that the date of transfer to The Money Plan was the 1^st of January 2001. Paragraph 3 of the letter stated that:

“To assist you in making a decision please find enclosed;

(a) Comparison booklet.

(b) Illustration letter.

(c) Option form.”

It was submitted, on behalf of the applicants that, TRIANGLE caused a booklet called 'Defined Benefit Triangle Senior Staff Pension Fund or Defined Contribution The Money Plan', which compared the two schemes to be published. All sixty seven applicants opted to remain members of the Triangle Senior Staff Pension Fund (TSSPF).

The first applicant averred that the applicants suffered an injury and/or that, alternatively, an injury is reasonably apprehended by them. In support of this contention is the averment found in paragraph 18 of the first applicant's founding affidavit, that TRIANGLE has unilaterally decided to refuse to make its share of contributions to the Triangle Senior Staff Pension Fund and/or to deduct their 7% contributions from their basic monthly salaries. The allegation against TRIANGLE is that, by refusing to recognize most of the earnings of members of the Triangle Senior Staff Pension Fund (TSSF) as 'pensionable', it has, by its conduct, breached the terms of the Triangle Senior Staff Pension Fund Rules and interfered with the accrual of pension benefits.

In support of this averment, the first applicant referred to a letter to the trustees of the Triangle Senior Staff Pension Fund (TSSPF), dated 1 April 2009, written by the TRIANGLE managing director, Mr. S. D. Mutsambiwa. The letter was entitled “Pensionability of US$ Salaries”. It reads as follows:

“Kindly note that the January 2009, February 2009 and March 2009 salaries have been paid in USD$ to employees who are members of the Triangle Senior Staff Pension Fund (TSSPF). These salaries were paid in USD$ without any confirmation by the employer whether or to what extent the salaries would constitute pensionable emoluments. A decision in this regard is still to be made pending a review of the 'dollarisation' of the Zimbabwean economy and the bearing this will have, amongst other things, on the functioning of the Fund. The company will be arranging a meeting with the Board of Trustees in the near future to consider the way forward both in relation to existing pensioners and active member. In the meantime, and until further notice, contributions will be remitted to the Fund Administrators as an interim measure pending final decisions regarding the way forward in respect of the Triangle Senior Staff Pension Fund (TSSPF). This interim arrangement should under no circumstances be regarded as an implied decision having been taken that current USD$ salaries are indeed classified as pensionable emoluments.”…,.

On 8 July 2009, TRIANGLE introduced the “guaranteed package” to employees in the Executive grade, backdated to June 2009….,.

In paragraph 24 of his founding affidavit, the first applicant avers that all the applicants were forced to sign the acceptance letter in unilateral variation of their conditions of employment.

To prove this claim, he referred to an electronic mail communication dated 15 December 2009, addressed to Mr, Eston, in which Fred Nyangwe advised that Mr. Eston's failure to sign the letter which contained the new conditions of service, meant that, with effect from 1 December 2009, his salary, as set out in the letter, would be discontinued and he would go back to earning his old salary as at 31 May 2009. He was also advised that the difference between the two salaries, which he had been paid, would be deducted from his old salary until it had been recovered in full.

On 7 October 2010, TRIANGLE announced that the Triangle Senior Staff Pension Fund (TSSPF) would be discontinued and its active members moved to the Money Fund with effect from 1 November 2010. The Triangle Senior Staff Pension Fund Trustees refused to sign a resolution to approve the disbanding of the Fund on the basis that this violated the Triangle Senior Staff Pension Fund Rules and constituted a reversal of the undertakings made by TRIANGLE to the Fund members.

The Trustees were of the view that the procedure set out by Rule 36 of the Triangle Senior Staff Pension Fund Rules had not been followed.

A meeting was held at which TRIANGLE announced the transfer of the Triangle Senior Staff Pension Fund members to the Money Plan and told the members that the transfer values would be based on January 2009 salaries and not on current salaries.

Again, this was alleged to be in violation of the Triangle Senior Staff Pension Fund Rules.

The applicants' contention is that the relevant Rule equates pensionable emoluments to a member's basic salary or wage. Members' basic salaries had increased significantly since 2009, in some instances by 500%. TRIANGLE contended that following the Triangle Senior Staff Pension Fund Rules would result in its bankruptcy.

On 19 October 2010, the Triangle Senior Staff Pension Fund members delivered a petition to the trustees of the Triangle Senior Staff Pension Fund to demonstrate that they did not wish or agree to transfer from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan. On 15 February 2011 the trustees addressed a letter to the TRIANGLE Human Resources Manager. Paragraph 3 of the letter reads as follows:

“…,. Of concern by members is why the trustees are not being consulted on the future of the Fund in accordance with the Fund's rules. Member trustees are not being kept informed as to what is happening and are not being asked for input or direction…”

In February 2011, TRIANGLE announced a further annual salary review together with changes to the structure of employment benefits. Members were asked to agree to and sign for these changes by 7 March 2011. Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, reads as follows:

“Dear Mrs Eston,

The structure of your remuneration package has been reviewed in the context of the need to align the employee remuneration framework…,. It is confirmed that your actuarily calculated benefit in the TSSPF is to be based on the USD$ salary that has been used to determine your Fund contributions since 1 January 2009…,.”

In response to the petition by members of the Triangle Senior Staff Pension Fund (TSSPF), the Insurance and Pensions Commission (IPEC) called a meeting and advised that TRIANGLE was at liberty to disband the Triangle Senior Staff Pension Fund (TSSPF) - but only after fully funding it and complying with the requisite termination procedures.

In paragraph 38 of the founding affidavit, it is averred, on behalf of the applicants, that they have no other remedy. Various meetings with the trustees have not yielded any results. TRIANGLE has continued to refuse to recognize members' basic salary as the pensionable emolument. Repeated appeals to the Insurance and Pensions Commission (IPEC) to intervene have not yielded any tangible solutions.

The applicants reiterate that no other remedy other than a declaratur and an interdict can assist them to assert their pension rights.

On 20 January 2014, TRIANGLE filed a notice of opposition.

The opposing affidavit was deposed to by Fred Nyangwe, the Human Resources director. He raised various points in limine;

(i) The first of which was that the applicants had failed to exhaust domestic remedies.

(ii) The second preliminary point raised is that there are material disputes of fact which make this matter incapable of resolution on the papers filed of record.

(iii) The third preliminary point raised in the founding affidavit is that this matter is lis pendens, the decision of the arbitrator, Mr. Mawire, of 23 September 2013, not being final.

(iv) The final preliminary point raised is that this matter has prescribed because the applicants' claims arose in August 2009, or, alternatively, January and August 2010.

On 20 February 2014, an answering affidavit was filed on behalf of the applicants. TRIANGLE was accused of usurping the power of the Board of Trustees of the Triangle Senior Staff Pension Fund (TSSPF) and of attempting to close the Fund. The trustees deliberated over the dispute for more than two years and it was alleged that they have failed to resolve the issue because the chairman of the Fund frustrated all efforts to settle the matter. It was contended that TRIANGLE frustrated efforts by the Insurance and Pensions Commission (IPEC) to resolve the dispute starting with the meeting of 6 October 2011, by failing to comply with the Insurance and Pensions Commission directives.

The issues that fall for determination before this court are as follows:

1....,.

2....,.

3....,.

4....,.

5. What constitutes basic salary for purposes of calculating the contributions due from the applicants and from TRIANGLE for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF) every month.

6. Whether the applicants are entitled to the relief sought....,.

AD MERITS

The heart of the matter, the crux of it, the issue that falls for determination in the main matter between the parties is the question of what constitutes basic salary for purposes of calculating the contributions due from the applicants and from TRIANGLE for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF) every month.

In order to do justice to this question, it is necessary to inquire into and determine whether the court may, in the circumstances of this case, issue a declaratory order and an interdict.

(f) Basic salary for purposes of calculating pensionable emoluments

Rule 2 of the Triangle Senior Staff Pension Fund Rules defines pensionable emoluments as;

“'Pensionable Emoluments' of a member shall mean his basic annual salary or wages together with any contractual bonus. For purposes of the Fund, changes in Pensionable Emoluments shall be recognized immediately.”…,.

The dispute between the parties pertains to the definition of what constitutes 'basic annual salary or wages.'

I agree with the contention that in order to answer that question, it is necessary to examine who is entitled to make that determination.

The contract of the first applicant, of July 1996, shows that the employer set out the definition of basic salary and that the first applicant signed the contract in acceptance of this. TRIANGLE has promised to make its determination of what constitutes basic annual salary after a review, and the applicants appeared to have accepted this stipulation by signing to indicate acceptance of the 'restructured cash package'. The first applicant, in his answering affidavit…, appears to accept that the employer has a contractual right to set the basic salary at the point of initial engagement but not thereafter.

Let us examine this assertion to see if it is correct both in fact and law.

Subject to any statutory requirement, an employer is entitled to make an offer to its existing employees in respect of salary structures. The employees have no obligation to accept the offer made by the employer, and often negotiate in that regard. Subject to anything that comes out of the negotiations, the offer made as to the structure of the salary is made unilaterally by the employer. Once the employees accept the offer it becomes binding on both the employer and the employees.

It was contended that in this case, there was formal acceptance of the document containing the offer, and there was further acceptance by conduct in continuing to accept the salary package.

I find this contention persuasive.

The first applicant was first employed in 1980. In 1996 he signed a new contract on terms set by TRIANGLE. So, in fact, and at law, the employer has the right to set the conditions of employment, including a determination of what an employee's basic annual salary is.

Having gotten that out of the way, it is pertinent, at this stage, to consider whether the restructuring of the applicants' packages conformed with the Triangle Senior Staff Pension Fund (TSSPF) Rules, i. e. whether the definition of cash package that the applicants accepted in 2009, complied with the Triangle Senior Staff Pension Fund (TSSPF) Rules specifically in relation to the co-relation between the 'basic salary' and the calculation of the pensionable emoluments.

It has been contended that, by keeping the definition of basic salary in respect of the Triangle Senior Staff Pension Fund (TSSPF) members at their January 2009 salaries, despite subsequent increases in salaries, TRIANGLE is unilaterally varying the Rules of the Triangle Senior Staff Pension Fund (TSSPF) to the applicants' prejudice. The basic annual salary is being kept deliberately and intentionally low, at 2009 levels, for the specific reason that TRIANGLE intends to keep the basic annual salary down in order to keep the applicants' pensionable emoluments down.

That is the crux of the dispute.

TRIANGLE has taken the stance that it will review this decision in due course.

Nine applicants have retired and had their pensionable emoluments calculated on the basis of their January 2009 salaries despite the fact that their actual salaries may have increased significantly since January 2009.

Is this in accordance with the Triangle Senior Staff Pension Fund Rules?

In my view, it is not. The reasons why I hold this view are discussed extensively below. I hold the further view that the applicants are entitled to have their pensionable emoluments calculated in accordance with the Triangle Senior Staff Pension Fund Rules. Any continued contravention of the Triangle Senior Staff Pension Fund Rules is prejudicial to the applicants. The ways in which TRIANGLE has contravened the Triangle Senior Staff Pension Fund Rules, in regards to the calculation of the applicants' basic annual salary, are explored in detail below.

(g) Are the applicants entitled to the relief that they seek when regard is had to the Triangle Senior Staff Pension Fund Rules?

It was submitted, on behalf of TRIANGLE, that the Triangle Senior Staff Pension Fund Rules do not give the applicants such a cause of action as to be entitled to the relief sought in the draft order…,. It was submitted, further, that an analysis of the Fund Rules will show that no cause of action arises in favour of the applicants. It was submitted that the Rules do not require adjudication as to what constitutes basic salary for the purposes of determining pensionable emoluments or to compel TRIANGLE to make any particular contributions to the Triangle Senior Staff Pension Fund (TSSPF).

In a nutshell, the argument raised is that the applicant's action against TRIANGLE cannot lie in the Triangle Senior Staff Pension Fund Rules.

With all due respect to counsel for TRIANGLE, again, I find that this argument is circuitous and self serving and is not based on an accurate reading of the Triangle Senior Staff Pension Fund Rules.

Some of the parties rights and obligations set out in the Triangle Senior Staff Pension Fund Rules form part of the contracts of employment between the applicants and TRIANGLE. There is a correlation between the applicants' contracts of employment and the Triangle Senior Staff Pension Fund Rules.

The first applicant's initial contract of employment set out the terms and conditions of the employment of C Band staff (Loss Control Manager) as at 1 July 1996. The basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that the basic salary was pensionable and that the company currently contributed 13% to the Triangle Senior Staff Pension Fund.

In terms of the submissions made on behalf of TRIANGLE…, the applicants have the right to be paid their cumulative contributions as at the date of termination of employment. That right is derived from Rule 29 of the Triangle Senior Staff Pension Fund Rules as read together with the contract of employment which specifies the parties respective pension contributions. The pension contributions are calculated in accordance with Rule 17 of the Triangle Senior Staff Pension Fund Rules as read together with the applicants' contract of employment.

Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, confirmed that her remuneration package had been restructured. The restructured remuneration package was valid from 1 March 2011. The letter confirmed her actuarily calculated benefit in the Triangle Senior Staff Pension Fund was to be based on the USD$ salary that had been used to determine her Fund Contributions since 1 January 2009.

Now, surely, it not being suggested that Mrs. Eston's Fund contributions, since January 2009, had not been determined in terms of the Fund Rules as read with her contract of employment. The Fund Rules have a symbiotic relationship with the applicants' contracts of employments.

Some of the benefits which constitute the rights and obligations of the parties in the contract of employment depend on the Triangle Senior Staff Pension Fund Rules for their definition, and alteration, and amendment from time to time. It is simply not sustainable, in my view, to argue that, as a matter of law, the applicants' cause of action cannot be determined in terms of the Triangle Senior Staff Pension Fund Rules. The symbiotic nature of the parties rights and obligations is as clear as crystal, in my view.

In conclusion, it is this court's view that the cause of action of the applicants against TRIANGLE lies in the Triangle Senior Staff Pension Fund Rules as read with the parties contracts of employment.

Another contentious issue raised by TRIANGLE in opposition to the granting of the relief sought by the applicants…, is that the application was erroneously brought in the name of Godfrey Chiparaushe, a C Band employee of TRIANGLE. It was submitted that the application should have been brought in the name of 58 employees and 9 retirees, broken down as follows:

E Band (senior management) 10 employees 1 retiree

D Band (middle management) 21 employees 1 retiree

C Band (supervisors) 27 employees 7 retirees

The point being made is that in terms of the definition of member in clause 2 of the Triangle Senior Staff Pension Fund Rules those who are retirees are no longer members of the Triangle Senior Staff Pension Fund, a member being a 'person prospectively entitled to any benefits' and a pensioner being a retired Member…,.

TRIANGLE disputes, correctly in my view, the right of the nine retirees to the relief sought.

I find persuasive the argument raised on behalf of TRIANGLE, that the real cause of action concerns the determination of what constitutes basic salary for the purposes of contribution by the employer and the employees to the Triangle Senior Staff Pension Fund (TSSPF). It was submitted that, as such, the real cause of action in the present matter has already accrued to the nine retirees and will accrue to the other applicants when they become entitled to the benefit in terms of the Triangle Senior Staff Pension Fund Rules.

I agree that the nine retirees, having already attained retirement age, and having had their pensions calculated on their retirement dates, have already exercised their right to be paid their cumulative contributions made to that date - the date of retirement. They have exercised their right to be paid a pension upon retirement and declaratur made by the court at this stage cannot apply retrospectively to them in regards to TRIANGLE.

Rules 22 and 29 of the Triangle Senior Staff Pension Fund Rules are clear. The right to have one's pension calculated and paid accrues at the retirement date - no sooner and no later.

(h) Requirements of a Declaratory Order

The applicants seek a declaration of their rights. TRIANGLE is not opposed to the declarations sought by the applicants in terms of (a)-(c) and (d) of the draft order…,.

What is in issue is that the applicants want the court to declare that the pensionable emolument in respect of each applicant shall be his basic annual salary (as used for PAYE, Group Life Assurance and National Social Security calculations, together with any contractual bonus).

The applicants seek the consequential relief that TRIANGLE be directed, forthwith, to re-commence making its contributions towards the balance of the costs of providing benefits towards the applicants on terms of the Triangle Senior Staff Pension Fund Rules as determined by the Triangle Senior Staff Pension Fund actuary, including any arrears which have arisen until such a time as the Triangle Senior Staff Pension Fund has been terminated in accordance with the Triangle Senior Staff Pension Fund Rules.

Finally, the applicants seek an order as to costs.

It is not in dispute that the High Court has jurisdiction to issue a declaratur, in its discretion, at the instance of any interested person, i e. to inquire into and to determine any existing, future, or contingent right or obligation.

It was submitted, correctly in my view, on behalf of the applicants, that the requirements of a declaratur are as follows:

(i) Firstly, that, the issue of a declaratur is not contingent upon there being a possibility of providing consequential relief. The applicants referred the court to the following cases as authority for this proposition;

Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S).

(ii) The grant of declaratory relief is discretionary; United Watch & Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor.

(iii) In order to qualify for a declaratur, the applicant must be an interested person with a direct and substantial interest in the subject matter of the suit that could be prejudicially affected by the judgment of the court; the interest must relate to an existing, future, or contingent right; the court must not decide abstract, academic or hypothetical questions which are not related to the applicant's interest.

See also Milani & Anor v South African Medical and Dental Council & Anor 1990 (1) SA 889 (T)…,.

(iv) The existence of an actual dispute between persons interested is not a statutory requirement to an exercise of the court's discretion. See Anglo-Transvaal Collieries Ltd v SA Mutual Life Assurance Soc 1977 (3) SA 631 (T)…,.

(v) The availability of another remedy does not preclude does not render the declaratory order incompetent. See Ex Parte Nell 1963 (1) SA 754 (A)…,.; Gelcon Investments (Pvt) Ltd v Adair Properties (Pvt) Ltd 1969 (3) SA 142 (R)…,.

The applicants submitted that, at the next stage of the inquiry, it is incumbent upon the court to decide whether or not the case is a proper one for the exercise of its discretion in terms of section14 of the High Court Act.

What constitutes a proper case has been described as follows:

“…, despite the fact that no consequential relief is being claimed or perhaps could be claimed in the proceedings, yet, nevertheless, justice or convenience demands that a declaration be made, for instance, as to the existence of or as to the nature of a legal right claimed by the applicant or of a legal obligation said to be due by a respondent. I think that a proper case for a purely declaratory order is not made if the result is merely a decision on a matter which is really of mere academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future, or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”

See Adbro Investment Co Ltd v Minister of the Interior & Ors 1961 (3) SA 283…,. See also Johnsen v Agricultural Finance Corporation 1995 (1) ZLR 65 (SC)…,.; Exp Chief Immigration Officer 1993 (1) ZLR 122 (S)…,.

TRIANGLE contended that;

(i) The grant of declaratory relief is discretionary and will not be used to usurp the function of another court and cited the case of Khupe v Officer in Charge, Law & Order Section, ZRP, Bulawayo Central & Ors 2005 (2) ZLR 394 (SC)…, as authority for this proposition.

(ii) It was submitted, further, that, the courts will use the power to issue a declaratur sparingly and with utmost caution. See Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 (HL)…,. Viscount Finlay.

(iii) It is a power that will only be exercised where there is a good reason for so doing. See Vine v National Dock Labour Board [1957] AC 488 (HL)…,.

TRIANGLE stated that, subject to its rights in terms of the Triangle Senior Staff Pension Fund Rules, it does not challenge the issues raised in the first three paragraphs of the draft order seeking declaratory relief. The other two orders sought were disputed on the basis that the factual and legal basis for such declaratory orders has not been established on the papers.

It was admitted that there is no dispute between the parties as to the rate of deduction from the salaries of the applicants nor that such deductions have been made each month. There is no dispute as to the rate of contribution by TRIANGLE nor as to the fact that TRIANGLE has been making that contribution each month.

It was submitted on behalf of the applicants that there can be no doubt that they are all interested parties, being members of the Triangle Senior Staff Pension Fund (TSSPF) or persons entitled to derive benefits from a member. On that basis, it is argued that they have a direct and substantial interest in the operation, existence, and regulation of the Triangle Senior Staff Pension Fund (TSSPF). In addition, the issues in respect of which a declaratur is sought are not academic and they have a bearing on the existence of the Triangle Senior Staff Pension Fund and on the accrual of the applicants' pension benefits. The applicants view is that there are some tangible and justifiable advantages to be gained by the grant of the declaration in regards to their pension rights.

It is this court's considered view that there is no legal impediment that would preclude the applicants (except for the retirees) from being issued with a declaration in these circumstances.

That leaves the issue of the definition of basic salary for the purposes of calculating pension emoluments as the only real dispute between the parties.

(i) Interdict

In order to obtain a final mandatory interdict (a mandamus), an applicant must show the following requirements:

(i) A clear or definite right - this is a matter of substantive law.

(ii) An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

(iii) The absence of similar protection by any other ordinary remedy. The alternative remedy must be:

(a) Adequate in the circumstances.

(b) Be ordinary and reasonable.

(c) Be a legal remedy.

(d) Grant similar protection.

See Tribac (Pvt) Ltd v Tobbacco Marketing Board 1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo 1914 AD 221…,.; Diepsloot Residents and Landowners Association & Anor v Administrator Transvaal 1994 (3) SA 336 (A)…,.; Kaputuza & Anor v Executive Committee of the Administration for the Heroes & Ors 1984 (4) SA 295 (SWA)…,.

It was contended, on behalf of the applicants, that one of the requirements of a final interdict, a clear right, has been defined by the learned authors HERBSTEIN & Van WINSEN, The Civil Practise of the Supreme Court of South Africa…, as 'a definite right'.

The word 'clear' relates to the degree of proof required to establish the right. The existence of a right is a matter of substantive law. Whether the right is clearly established is a matter of evidence. In order to establish a clear right, the applicant has to prove, on a balance of probabilities, the right that he seeks to protect.

See Devilliers v Soetsane 1975 (1) SA 360 (E); Beukes v Crous 1975 (4) SA 215 (NC)…,.

It was submitted on behalf of the applicants, that, in terms of Rule 17 of the Triangle Senior Staff Pension Fund Rules, they have a clear right to have a compulsory contribution equal to7% of their pensionable emoluments deducted from their basic monthly salary. It was submitted, further, that, in terms of Rule 2 of the Triangle Senior Staff Pension Fund Rules pensionable emolumens are defined as basic annual salary together with any contractual bonus. In terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules the Triangle Senior Staff Pension Fund has an obligation to contribute the balance of the costs of providing the benefits in terms of the Fund Rules, as determined by an actuary, which contribution shall be no less than the compulsory contributions paid by the members….,.

These obligations remain valid and binding for as long as the Triangle Senior Staff Pension Fund (TSSPF) has not been disbanded.

The applicants submitted that TRIANGLE cannot change the definition of a pensionable emolument without amending the provisions of Rule 2 of the Fund Rules. TRIANGLE was charged with 'unilaterally' changing the structure of a Member applicant's remuneration to introduce a new structure of remuneration called “Guaranteed Package” which excludes any mention of how the pensionable emoluments of Member applicants would be dealt with….,. It was argued that Rule 2 of the Triangle Senior Staff Pension Fund Rules includes a Member's basic annual salary and any contractual bonus. It was submitted that Member applicants have a clear right to have their basic salary considered to be their pensionable emoluments, to have 7% deducted therefrom, and to have TRIANGLE pay its share of the monthly contributions into the Triangle Senior Staff Pension Fund (TSSPF).

It was contended, on behalf of TRIANGLE, that the interdict, as claimed, is premised on the false allegation, or, alternatively, the disputed allegation that it is not making its contributions in terms of Rule 19 nor deducting the contribution of the members in terms of Rule 17 of the Triangle Senior Staff Pension Fund Rules. It was submitted that these allegations are incorrect, and, consequently, the requirements of a final interdict had not been met on the papers filed of record.

TRIANGLE relied on the following cases as authority for this proposition;

Nument Security (Pvt) Ltd v Mutoti & Ors 2007 (2) ZLR 300 (SC)…,. See also Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234…,. where the court said that:

“It seems to me that where there is a dispute of facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order.”

I find myself unable to agree with the submissions made on behalf of TRIANGLE that there is a dispute of fact which is incapable of resolution on the papers for reasons previously stated. It was submitted, further, that the proposed interdict confuses the obligations of TRIANGLE under Rule 19 and Rule 41(iii) of the Triangle Senior Staff Pension Fund Rules.

Rule 19 of the Triangle Senior Staff Pension Fund Rules reads:

“Each Employer shall contribute the balance of the costs of providing the benefits in terms of these Rules as determined by the actuary and agreed by the Principal Employer from time to time provided that the Employer's contributions shall not be less that the compulsory contribution by the Members.”

Rule 41(iii) of the Triangle Senior Staff Pension Fund Rules, dealing with actuarial valuation, reads:

“If, as a result of a valuation by an Actuary, the Trustees decide that the benefits laid down in these Rules cannot be adequately financed by the maximum company contribution rate specified by the Principal Employer from time to time, then, notwithstanding the provisions of Rule 45, the benefits shall be reduced or the employee contribution rate increased as the Trustees, with the consent of the Principal Employer, and on the advice of the Actuary, decide.”….,.

The Principal Employer is TRIANGLE.

In this matter, the company contribution rate is 13.5% of each Members' basic salary. It is contended that this fulfills the obligation of TRIANGLE in terms of Rule 19 of the Fund Rules.

I agree with that interpretation of Rule 19 which requires that the employer's contributions be not less than 7%, which is what the employees are contributing. It was submitted on behalf of TRIANGLE that it is not in dispute that at present it is contributing 13.5% of each Member applicant's salary to the Triangle Senior Staff Pension Fund.

Rule 41(ii) allows a variation upwards or downwards of the monthly contributions by the employer and/or by Member applicants, on condition that, after the contributions that are proposed to be varied are valued by an actuary, the Trustees must agree to the proposed variation and TRIANGLE must agree with the decision of the Trustees.

The issue that is taxing the court is that, in these circumstances, there was no such agreement by the Trustees to vary the monthly contributions of the Member applicants or of TRIANGLE, and, consequently, TRIANLGE could not purport to do so in the absence of any agreement to that course of action by the Trustees.

By altering the composition of the Member applicant's basic salary, TRIANGLE caused a ripple effect which varied the calculation of the Member applicants' monthly contributions, as well as TRIANGLE's own monthly contributions, and failed, refused, or neglected to get the consent of the Trustees to the proposed variation.

A deduction of 7% and 13.5% of the Member applicants' basic salary as at January 2009, for onward transmission to the Triangle Senior Staff Pension Fund involves a decision to use Member applicant's January 2009 salaries as a benchmark for the deductions. The Member applicants' salaries as at January 2009 are not the same salaries that they were individually paid when they joined TRIANGLE. Nor is it the same as the salaries that the Member applicants are being paid now. The decision to keep the January 2009 salary benchmark as a basis for calculating the member applicant's pensionable emoluments, requires the approval of the Trustees to bring it into line with Rules 2 and 19 and 41(iii) of the Fund Rules.

In my view, the applicants have proved, on a balance of probabilities, that they have a clear right that they seek to protect;

(i) The right to enforce compliance with the provisions of Rules 2, 19 and 41(iii) of the Triangle Senior Staff Pension Fund Rules;

(ii) The right to have a valuation done by an actuary as to whether their benefits in terms of the Triangle Senior Staff Pension Fund Rules can no longer be adequately financed, and, if so, whether the benefits should be reduced, and, if so, to what extent in regards to the employer and in regards to the Members of the Triangle Senior Staff Pension Fund;

(iii) The right to have the valuation done by an actuary put to the Trustees for consideration;

(iv) The right to have a decision made by the Trustees; and

(v) Finally, the right to have the employer agree or disagree with the decision of the Trustees.

The second requirement for an interdict is an act of interference which is defined as 'injury actually committed or reasonably apprehended'. See Setlogelo v Setlogelo 1914 AD 221.

The word 'injury' must be understood in the wide sense to include any prejudice suffered by an applicant as a result of the infringement of his rights. See HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa…,. The injury must be a continuing one. The court will not grant an interdict restraining an act already committed for the object of an interdict is the protection of an existing right; it is not a remedy for a past invasion of rights. As authority for this proposition see Performing Right Society Ltd v Berman 1966 (2) SA 355 (R)…,.

The test for apprehension is an objective one. The applicant must show, objectively, that his apprehensions are well grounded. See Ex Parte Lipschitz 1913 CPD 737. The apprehension must be induced by some action performed by the respondent or authorized to be performed by his agent. See Goldsmith v The SA Amalgamated Jewish Press 1929 AD 441.

The applicants contended that TRIANGLE stated that it will not consider the basic salary being paid to the Member applicants as their pensionable emoluments. As evidence of this is the minutes of June 2011 where TRIANGLE stated that:

“…, considering all the events that have taken place over the past few years, for the Triangle Senior Staff Pension Fund (TSSPF) employees to argue that the full cash package should be pensionable is a position that the employer will not reconcile to.”

And minutes of the June 2011 Trustees meeting where the employer communicated a preference for employees to move to the Defined Contribution Fund:

“The Employer has signaled for some time that its preference is for employees to move to a DC Fund for the following reasons (amongst others): The Employer wants to ensure that going forward all employees are treated equitably in terms of their conditions of employment, there is a general move towards remuneration on a 'total package', or 'total cost of employment' basis, and once all employees are on a DC Fund, it would be much easier to ensure fair and equitable treatment of employees in terms of all their respective conditions of employment.”

The applicants' well grounded fear is that, for every month that passes without TRIANGLE complying with its obligations in terms of the Triangle Senior Staff Pension Fund Rules, it is interfering with the accrual of their pension benefits.

It is this court's view that the applicants have successfully discharged the onus on them and adduced sufficient evidence on the papers to show, on a balance of probabilities, that the applicant's fear is well-grounded. An injury of a continuing nature is actually being perpetrated against them. The injury actually committed, which is continuing to be committed, is prejudicing them. The injury is compounded by the fact that TRIANGLE did not bother to cause an actuary to re-evaluate the respective parties' contributions as provided in terms of Rule 41(iii) and Rule 19 of the Triangle Senior Staff Pension Fund Rules.

We are not taken into TRIANGLE's confidence with regards to the basis on which it decided to peg Member applicants' January 2009 salaries as the benchmark for calculating pensionable emoluments.

The third requirement for an interdict is that there be no other satisfactory remedy available to the applicants.

A final interdict is a drastic remedy which is within the discretion of the court. The court will not, in general, grant an interdict when the applicant can obtain adequate redress in some other form of ordinary relief. See Reserve Bank of Rhodesia v Rhodesia Railways 1966 (3) SA 656 (SR). It was held, in this case, that where there is an existing remedy with the same result for the protection of the applicant, an interdict will not be granted.

The applicants submitted that they have no other remedy that can provide them with satisfactory redress in these circumstances. Attempts to have the matter resolved by the Trustees failed. The Commissioner of the Insurance Pension and Provident Fund failed to resolve the dispute. The Labour arbitrator declined jurisdiction. A claim for damages would be inadequate.

It is this court's view that the three requirements of an interdict were met by the applicants.

The final mandatory interdict sought in this matter, in effect, is a direction that TRIANGLE abides by the Rules of the Triangle Senior Staff Pension Fund, more particularly, that it allows the Triangle Senior Staff Pension Fund actuary to determine what the balance of the cost of providing benefits towards the applicants is, in accordance with the Triangle Senior Staff Pension Fund Rules. The mandatory interdict sought is merely an order to TRIANGLE to comply with the Rules of the Triangle Senior Staff Pension Fund, by consulting the Triangle Senior Staff Pension Fund Trustees and actuary, and working with them to achieve consensus in terms of the Triangle Senior Staff Pension Fund Rules. It is accepted, however, as previously stated, that the nine retirees are excluded from the relief granted to the rest of the applicants in regards to the interdict.

(j) Whether the applicants are entitled to the declaratur sought and an interdict in the circumstances

It is common cause that TRIANGLE put in place an arrangement whereby each of its employees received a payment in United States dollars after dollarization in 2009. The arrangement was that each of its employees would receive payment in United States dollars, and, in respect of members of the Triangle Senior Staff Pension Fund who opted to remain with the Triangle Senior Staff Pension Fund, the question of the extent to which any payment or portion of payment in United States dollars was to be treated as a basic salary, and therefore pensionable, remained open.

TRIANGLE then purported to 'restructure' the conditions of employment of its employees, starting with the E Band employees. After negotiations with senior employees, the final restructured package was set out in a letter dated 31 July 2009. The letter carried a caveat that the employees would be advised, in due course, of the extent to which the current cash package would be pensionable. It is common cause that 11 of the E Band employees signed the letter. It was contended on behalf of TRIANGLE that, by accepting the revised remuneration offered each month thereafter 31 July 2009, the employees accepted this position by their conduct.

On 19 January 2009, a similar letter was dispatched to middle management employees, D Band. The letter was prepared by some of the E Band employees. 21 out of the 22 D Band employees signed the letter in acceptance of the 'restructured package'. Thereafter, restructuring of the salaries and other terms of employment of supervisory and skilled staff, C Band employees, was dealt with by way of a letter dated 24 August 2010. 29 out of the 34 C Band employees signed the letter and indicated acceptance of the revised terms.

The applicants contended that these changes to the conditions of employment were imposed unilaterally. It was submitted on behalf of TRIANGLE that the evidence does not support this contention.

I find myself in agreement with the position adopted by TRIANGLE, that the 'restructuring' of the remuneration packages was done in consultation with senior staff, E Band employees. It is common cause that 61 out of the 66 applicants signed acceptance of the new conditions of employment. Subsequently, the employees who had signed the letters received increases in their monthly cash packages which indicate further acceptance of the changes in their contracts. The letter of 16 August 2010 repeated the assertion that the review of the status of Defined Benefit Funds and of the Triangle Senior Staff Pension Fund was still in progress. The applicants continued to accept payment of their 'restructured cash package' on that basis.

Are the applicants bound by an issue estoppel?

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there-cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”

I am in agreement with the contention that the essence of the issue in the present matter, and of the problem caused by the relief sought by the applicants, is that they have been paying less than what they should have as a contribution to their pension, 7% of the January 2009 salary and not 7% of the total cash package or total remuneration. Likewise, TRIANGLE has been paying 13.5% of the January 2009 salary as the employer's contribution to the pensions scheme.

The applicants seek that position to change only in relation to TRIANGLE (based on the terms of the mandatory interdict sought) and for a declaratur that their rights to a pension are based on quite a different figure from that on which they have been making payment - but with no corresponding declaration that they have to make a contribution based on their total cash package. This would create gross inequality between the applicants themselves and the nine retirees and cause prejudice to the Triangle Senior Staff Pension Fund and to TRIANGLE. The applicants have not tendered repayment of all the arrears of the difference between that which was paid and 7% of the remuneration received.

For these reasons, it is this court's view that the applicants, by conduct, accepted remuneration between January 2009 and the introduction of the total cash package with the explicit knowledge that TRIANGLE has been paying 13.5% of the January 2009 salary as the employer's contribution to the Triangle Senior Staff Pension Fund (TSSPF). With the introduction of the total cash package the applicants knew that there was no question that the amount being paid to them each month was to be treated as their basic salary, and each of them accepted that position. It was clear to them, and each of them accepted the position, that their pension contributions were based on an amount less than their actual total pay package. By their conduct, in continuing to accept that position, the applicants represented to TRIANGLE their acceptance of what TRIANGLE had determined. It must be borne in mind that, in granting declaratory relief to an interested person, person's interest must concern an 'existing, future or contingent right'.

The court finds that the applicants are estopped from enforcing their existing interests in the Triangle Senior Staff Pension Fund in the sense of recouping arrear contributions from TRIANGLE.

It would have been in the interests of justice to order both parties to pay their mutual arrear contributions to the Triangle Senior Staff Pension Fund had the applicants not accepted, by their conduct, the determination of basic salary by their employer. However, the court sees no reason why the applicants may not be granted consequential relief with regards to their future, or contingent rights. For these reasons the following orders are made:

The applicants are accordingly estopped:

(a) From disputing the right of their employer, TRIANGLE, to determine what portion of their total remuneration package is to constitute basic salary for the purposes of pension contributions and determining their pensionable emoluments between the period January 2009 to the date of this judgment.

(b) From denying that their basic salary in terms of the Triangle Senior Staff Pension Fund Rules is the full amount paid to each of them for the month of January 2009 up to the date of this judgment.

The parties being in agreement on certain issues in respect of which the applicants sought a declaratur, and these declaraturs not having retrospective effect:

IT IS HEREBY DECLARED, WITH THE CONSENT OF THE PARTIES, THAT:

(c) The Triangle Senior Staff Pension Fund is valid and binding in accordance with its Rules.

(d) TRIANGLE LIMITED can only disband the Triangle Senior Staff Pension Fund in accordance with its Rules.

(e) The applicants, who are members of the Triangle Senior Staff Pension Fund (a defined benefit fund), have no obligation to move to the Money Plan (a defined contribution plan).

IT IS HEREBY DECLARED AND IT IS COMMON CAUSE THAT:

(f) TRIANGLE LIMITED has an obligation to deduct 7% of the applicants' basic annual salary as their contribution towards the Triangle Senior Staff Pension Fund (TSSPF) and to meet its share of the contribution towards the Triangle Senior Staff Pension Fund in accordance with Rule 19 of the Triangle Senior Staff Pension Fund Rules.

(g) IT IS HEREBY DECLARED THAT TRIANGLE LIMITED has an obligation to cause the determination of the applicants' basic annual salary for purposes of the calculation of the applicants' pensionable emoluments, from the date of this judgment onwards, in accordance with the Triangle Senior Staff Pension Fund Rules, and, that this obligation shall be discharged in full within (90) ninety days of the date of this order.

(h) CONSEQUENT TO THE ABOVE DECLARATIONS, TRIANGLE is hereby directed, within (90) ninety days of the date of this order, to recommence making its contributions, and to deduct the applicants' contributions for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF), towards the costs of providing benefits towards the applicants in terms of the Triangle Senior Staff Pension Fund's Rules as determined by the Triangle Senior Staff Pension Fund's actuary, and approved by the Triangle Senior Staff Pension Fund Trustees, EXCLUDING any arrears which arose between January 2009 and the date of this order, until such time as the Triangle Senior Staff Pension Fund has been terminated in accordance with the Triangle Senior Staff Pension Fund Rules.

(i) TRIANGLE shall pay the costs of this application.

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision.

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

There were three issues for determination before the court a quo. These were the following:

(i) The amount in local currency to be converted into foreign currency;

(ii) The date of the prevailing rate of exchange to be applied for purposes of conversion.

(iii) The rate of exchange applicable for such conversion.

On the first issue, the court a quo found that the total amount to be converted into United States dollars was ZW$3,937,217=09. The learned judge concluded, on the second issue, that the date of rate of exchange to be applied was that rate which was prevailing on the date of judgment, being 23 January 2008.

It is this conclusion that the appellant disputes.

The appellant was aggrieved by that decision and noted this present appeal. The appellant moved an amendment to its grounds of appeal. The respondent did not object and the amendment was allowed by consent. The grounds of appeal, as amended, are framed as follows:

1. The court a quo erred at law in not finding that the ZW$ award made in favour of the respondent had, by operation of law, completely been decimated, and that, consequently, there was no ZW$ to convert to US dollars.

2. The court a quo erred in using the 23^rd of January 2008 as the date of payment, and, therefore, the conversion date instead of using 24 October 2012 as the conversion date, it being the date on which the respondent demanded payment.

3. In any event, the court a quo erred in finding, as common cause, that the rate of conversion from Zimbabwean dollars to United States dollars, as at 23^rd January 2008, was USD$1: ZWD$30 contrary to the conversion rate of USD$1: ZWD$30,000= pleaded by the respondent and accepted by the appellant.

4. The court a quo erred in finding that, on the facts pleaded, the appellant was liable to the respondent in the amount of USD$131,240=56....,.

The first two grounds are being raised for the first time in this appeal.

Counsel for the appellant submitted that the issues being raised in those grounds were not before the court a quo. Critically, therefore, in its amended notice of appeal, the appellant seeks to introduce an issue that the court a quo erred in failing to note that the award made in favour of the respondent in 2008 was completely decimated and therefore there was nothing to convert.

The appellant argues that the amount awarded as damages had been ravaged by inflation, and, as a consequence, there was nothing to convert into foreign currency. In addition, it was contended that the currency was devalued in terms of S.I.109 of 2008, the effect of which was to render the local currency moribund.

It is common cause that the award of damages was appealed to this Court immediately after the judgment was rendered. The appeal itself was heard on 5 October 2010 and there is no indication that during the hearing the appellant made any effort to suggest that the amount being appealed was no longer capable of being paid and that the judgment could not in fact be given effect to. In addition to the above, the appellant did not, at any stage, attempt to have the order rectified following the promulgation of S.I.109/08....,.

In the premises, it is my view that the amount awarded as damages in local currency was what should have been used as a basis for the calculation of the foreign currency equivalent.

This is an appeal against a judgment of the High Court handed down on 18 May 2016.

BACKGROUND FACTS

The facts which gave rise to this appeal are somewhat convoluted. Earthmoving & Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe.

The Company had, at the time of incorporation, an authorized share capital of $32, divided into 32,000 ordinary shares with a nominal value of $0.001 each. Of those shares, only two had been issued. and were, at the time that these events evolved, owned by one Sandra Maureen Muir (“Mrs Muir”). This, in effect, gave 100 percent ownership of the issued shares to Mrs Muir.

In turn, the Company is the registered owner of an immovable piece of land, situate in Harare, identified as a certain piece of land situate in the district of SALISBURY TOWN LANDS measuring 3,066 square metres (also known as 98 Churchill Avenue, Gunhill, Harare). This property is the sole asset of the company.

On 27 May 2007, Mrs Muir concluded a written agreement of sale with Mr and Mrs Gurupira, in terms of which Mrs Muir sold to them the two shares in the Company. In terms of the agreement between the parties, the shares purchased by the Gurupiras' would entitle them to the “exclusive right of use and occupation” of the immovable property owned by the company. The purchase price for the shares was recorded as ZW$7,000,000,000= (seven billion dollars), payable as to a deposit of ZW$3,300,000= which was acknowledged as having been paid at the time of signing of the agreement. The balance of ZW$3,370,000,000= was to be paid within six (6) months from the date of the agreement. The rate at which the outstanding balance was to be paid as well as the frequency thereof were left to the discretion of the parties.

Although the purchase price was quoted in the local currency, it is common cause that the Gurupiras made sporadic payments sometimes in fuel, sometimes in US Dollars, and sometimes in Zimbabwe Dollars.

Up until the end of June 2007, the Gurupiras had made payment on eight occasions, with payment being made as described above. The total amount paid to Mrs Muir under this arrangement is in dispute between the parties.

On 4 August 2007, the Gurupiras addressed a letter to Mrs Muir indicating that they were encountering challenges raising the balance of the purchase price and sought an extension of the time to make payment but did not specify an exact date of expected payment. The last date for payment under the agreement was 25 November 2007.

A dispute ensued on the manner of payment, the currency of payment, and the place at which payment should be effected.

The Gurupiras alleged that at some point Mrs Muir started refusing payment in the local currency and demanded that the balance be paid in foreign currency. Mr Gurupira advised Mrs Muir that he could only pay foreign currency if he was able to access it and that he was not always in a position to obtain it. On 12 November 2007, Mr Gurupira instructed his legal practitioners to write to Mrs Muir to provide an account into which payment of the outstanding balance of the purchase price could be deposited. There was no response.

On 23 November 2007, the Gurupiras filed an application in the High Court seeking an order for Mrs Muir to provide a Bank account into which payment of the outstanding balance of the purchase price could be paid. In addition, they sought an order for specific performance by Mrs Muir for the transfer of shares in the company to themselves against a tender of payment of the balance of the purchase price.

This application never saw the light of day having been withdrawn before it could be set down.

The record shows that on 6 September 2007, the Gurupiras made a payment through wire transfer directly to Israel where Mrs Muir was now residing. Also on record is a cheque payment, in February 2008, into a Standard Chartered Bank account bearing Mrs Muir's name.

It is common cause that during the period following the filing of the above mentioned application Mrs Muir concluded a series of agreements with the first appellant, (“Leggett”).

On 11 December 2007, Mrs Muir and Leggett concluded an agreement in terms of which the latter would subscribe to 98 ordinary shares in the company. Subsequently, on 27 May 2008, Leggett concluded an agreement with Mrs Muir in terms of which the former purchased the entire shareholding in the company from Mrs Muir. Just as in the case of the Gurupiras, the purchase entitled him to “exclusive use and occupation” of the immovable property which is the subject matter of this appeal.

Subsequent to the conclusion of the first agreement, the Gurupiras became aware that Mrs Muir had placed advertisements for the sale of the immovable property. As a consequence, on 7 March 2008, under Case No. HC1393/08, the Gurupiras filed an application with the High Court in which they sought, variously, as against the company, interlocutory relief prohibiting the transfer of the immovable property, and, as against Mrs Muir, an order for specific performance in respect of the immovable property. The Registrar of Deeds, the Sheriff for Zimbabwe and his Deputy were also cited as third, fourth and fifth respondents respectively.

On 21 May 2018, the High Court granted an order in favour of the Gurupiras, in default of appearance from Mrs Muir and the company, as claimed in the draft order.

On 16 June 2008 the property was transferred to the Gurupiras under Deed of Transfer No. 4778/08. They proceeded to evict the occupant, one Diniwe Chinyani. She informed Leggett.

An urgent application for rescission of the default judgment was filed on behalf of the company. It was adjudged not urgent and was finally set down for hearing as an opposed matter. However, the matter was referred to trial on the premise that there existed material disputes of fact.

Pending the determination of the application for rescission, the company filed a counter application in which it sought an order for the eviction of the Gurupiras on the premise that it was the owner of the property in question.

On 19 March 2014, after a full trial, the High Court gave an order in terms of which the default judgment was set aside with leave being granted for “the respondent” in the main application to file opposing papers.

The main application was heard by the High Court on 21 May and 18 June 2015. By this time, pursuant to an application by the Gurupiras, Leggett had been joined as sixth respondent by order of the court. An issue arose as to whether Mrs Muir was before the court. The Gurupiras argued that she had not applied for the rescission of the default judgment in the sense that only the company had sought such rescission. It also transpired that Mr Stevenson, who purported to represent her on the day of the hearing, had not filed papers on her behalf nor did he appear to have the mandate to represent her.

On 18 May 2016 the High Court handed down its judgment and issued an order:

1. Declaring that the Gurupiras to be the lawful shareholders of the entire shareholding in the first respondent (the company) and that any purported transfer or appointment of directors by the sixth respondent (Leggett) be deemed to be null and void. (sic)

2. Directing the second respondent to sign all necessary documents to effect transfer of the above-mentioned shares. (sic)

3. That should the second respondent fail to sign the necessary documents to effect transfer of the shares, the Sheriff of the High Court be directed to sign all necessary documents to effect transfer of the shares to the Gurupiras.

4. The first and sixth respondents shall bear the costs of this application on an attorney and client scale jointly and severally each causing the other to be absolved. (sic)

5. Dismissing the sixth respondent's counter-application.

It is this decision that Leggett has brought on appeal and Mrs Muir is cited as third respondent to the appeal....,.

Counsel for the respondents also took a point in limine on the appeal by the second appellant. He submitted that legally a company could only be represented by a director and not a shareholder, which the first appellant described himself as. Accordingly, he argued that there there was no proper appeal by the second appellant before the court.

I do not intend to let this argument detain me.

The first and second respondents have been litigating with the second appellant from the onset. In documents filed by the first appellant in defence of the second appellant, the former has always referred to himself as a shareholder and director of the second appellant. 

The point in limine is groundless and is dismissed.

In this opposed matter before me, I find the African proverb that “the best way to eat an elephant in your path is to cut him into little pieces,” metaphorically apt in this instance (I assume, of course, that the proverb relates to a dead elephant). I say this because in order to decide on the matter, at whose nub is the transfer of certain property to the applicant, I must first unpack and deal, bit by bit, with the story within a story that stands in the path of transfer.

An equally rich African proverb that gives context to the dispute, also inspired by the elephant, is one that says “one sees all sorts of knives the day an elephant dies.”

The property at the heart of the dispute is described as Stand Number 1006, Remainder of Hilton Subdivision of Waterfalls of Salisbury measuring 1,987 square metres held under Deed of Transfer No. 7666/2001. The first applicant, Eunice Dzangare (hereinafter referred to as “Dzangare”), bought this property as an undeveloped piece of land through a company called Wish Properties (hereinafter be referred to as “Wish”), then represented by its Director Biriam Wabatagore who is since deceased. This sale is not disputed by Wish Properties. It is confirmed by the late Mr Wabatagore's widow, Audrey Wabatagore, who is now the director of Wish Properties.

At the time of the agreement of sale, and upon payment of the purchase price, Eunice Dzangare was given vacant possession by Wish Properties in 2003. She has remained in undisturbed possession of the immovable property from that time and has since developed the property by constructing a dwelling house.

The problem arises from the fact that the property was not transferred.

She has tried to obtain transfer but it became necessary to join Wish Properties to this application because the agreement with Champion Constructors was not with her but with Wish Properties.

Wish Properties says it had bought the immovable property from the first respondent, Champion Constructors (Private) Limited (hereinafter referred to as “Champion”) under a written agreement of sale. Champion Constructors held a Parent Deed to a property which it was in the process of subdividing into various Stands which included the one that Wish Properties had purchased and subsequently sold to Eunice Dzangare.

The late Mr Wabatagore was also a legal practitioner. Mrs Wabatagore says that the agreement of sale between Wish Properties and Champion Constructors unfortunately cannot be found as the document was misplaced in the takeover of her late husband's law firm. However, she draws on various annexures in support of her claim of the existence of an agreement. The annexures consist largely, though not exclusively, of various correspondence between Wish Properties and Champion Constructor's then legal practitioners, Messrs Mandizha and Partners who were handling the issue of the subdivision of the principal property into Stands.

What Wish Properties seeks is that the sale to it by Champion Constructors be recognised so that it, in turn, can transfer the Stand in question to Eunice Dzangare to whom it has since ceded the property. Wish Properties has ceded its rights to transfer to Eunice Dzangare.

At the core of Wish Properties legal argument is that it has proven its case on a balance of probabilities, this being the standard required in civil proceedings. It regards the denial of the sale by Champion Constructors as an afterthought, spurred by a quest to capitalise on the fact that the agreement cannot be found. Wish Properties points to the improbability that there was no agreement of sale, to Eunice Dzangare's occupation of the property for over nine years, at the very minimum, without any challenge.

Champion Constructor's director is Elizabeth Chidavaenzi and is the second respondent in the matter. She is opposed to the transfer on the basis of Wish Properties failure to produce the agreement of sale.

She says that Wish Properties should be put to the strictest proof of the alleged agreement of sale and that the documents that Mr Wabatagore's widow relies on do not prove the existence of an agreement of sale. The cases of H & Dwitkopipen Agencies & Fourways v De Sousa 1971 (3) SA 941 TPD^; and U-Freight Euromar (Private) Limited v Emmanuel Mutebuka HH05-03 were cited in support of the contention that the authenticity of documents must be proven.

She also argues that, at the very least, the first applicant would have had copies of the agreement of sale.

The undisturbed occupation by Eunice Dzangare is denied on the basis that it has been subject to litigation since 2012 when, instead, of considering an offer to purchase, she instituted legal proceedings. It is also said that Wish Properties failed to prove critical elements of an agreement of sale such as the purchase price and whether it was paid.

At the heart of her legal argument is that the order sought against Champion Constructors, as the respondent, is not competent.

Champion Constructors also premises its argument on the rei vindicatio doctrine, aimed at protecting ownership and based on the principle that an owner cannot be deprived of his property without his consent. Alspite Investments (Private) Limited v Tendai Westerhooff HH99-09; Hwange Colliery Co. v Savanhu 2013 (1) ZLR 555 (H); Hamtex Investments (Private) Limited v King 2012 (2) ZLR 334 (H) were cited in support of the operation of this principle.

She also argued that the cession by Wish Properties of personal rights to the property in question was irregular as it was effected after pleadings had closed and without the approval of the court.

Wish Properties, on the other hand, argue that Champion Constructors's consent was not necessary to effect a valid cession. On its behalf, counsel drew on section 11(1)(v) of the Deeds Registries Act which provides an exception in that the court may validly effect transfer direct to a third person although section 11(2) provides that liability for any duties still remains. He also emphasised that in terms of section 11(1)(a) and (b) departures of transfers of land and cessions from following the sequence of the successive transactions is permitted in exceptional circumstances.

In view of the above, the first issue to be dispensed with in order to decide whether such transfer should be effected against this backdrop of its legal permissibility is whether the explanation for the absence of the agreement is acceptable.

The widow's explanation is that the document was most probably lost in the process involving the take over of her husband's law firm. The circumstances that led to the misplacement of the document are believable and highly probable. Papers and documents may indeed have been moved or became inadvertently destroyed in the takeover of his practice following the death of Mr Wabatagore. Documents do sometimes get lost in lawyers' offices - even without the spectre of re-arrangements necessitated by death. The explanation is therefore not one that stretches the imagination.

As such, secondary evidence can, in my view, be examined to establish whether there was an agreement.

In the case of Absa Bank v Zalvest Twenty (Pty) Limited & Anor 2014 (2) SA 119 (WCC) it was accepted that secondary evidence can be produced of the existence of a contract where the contract had been destroyed or lost. This was explained as follows…,.:

“In regard to the substantive law of evidence, the original signed contract is the best evidence that a valid contract was concluded and the general rule is thus that the original must be adduced. But there are exceptions to this rule, one of which is where the original has been destroyed or cannot be found despite a diligent search. In such a case, the litigant who relies on the contract can adduce secondary evidence of its conclusion and terms (see Singh v Govender Brothers Construction 1986 (3) SA 613 (N) at 616J-617D). There are, in modern law, no degrees of secondary evidence (ie one does not have to adduce the 'best' secondary evidence). While a photocopy of the lost original might be better evidence than oral evidence regarding the conclusion and terms of the contract, both forms of evidence are admissible once the litigant is excused from producing the original.”

Placing the burden on Mrs Wabatagore, as the second applicant's director in this case, to prove that there was an agreement and to recount its terms, aims at reducing the dangers of fraud. I am, however, cognisant of the fact that her late husband was the actual party to the contract and that the only other party who would have the contract is the defendant who denies the existence of the contract.

I examine the evidence chronologically in terms of how it builds up the story or otherwise of the existence of an agreement.

On 7 August 2003 the deceased's law firm, Wabatagore and Company, wrote to Messrs Mandizha & Partners, Champion Constructor's conveyancers, enquiring about the transfer of three Stands from Champion Constructors to Wish Properties. One of these Stands was the Stand in dispute.

The letter indicated therein that the Stands had since been sold and sought to find out whether the Stands had been fully paid for. It must be remembered that this was at the height of the hyper-inflationary environment and it was not unusual for parties to seek clarifying on top ups of what had been paid particular where payment had been in instalments and where transfers were still outstanding. It was also clearly indicated in the letter of 7 August that one of the purchasers desperately needed to start construction.

This letter of 7 August was followed up with another one on 7 November 2003 expressing concern at the non-response to its enquiries and reiterating, again, that the Stands, identified as 1021, 1006 and 1046 had been sold. The letter, like the previous one, was copied to Eunice Dzangare, one Diana Mapingure and one Mercy Moyo. Another letter written on 3 March 2004 again lamented that no response had been received to any of the above-mentioned letters. Again, it demanded to know the transfer requirements for the three Stands.

Notably, Champion Constructors key reaction to this correspondence is not a denial that Messrs Mandizha & Partners were its lawyers. Instead, the denial is premised on whether the letters were ever received at Mandizha and Partners.

Champion Constructors also points out that the threat to report to the Law Society was not carried out.

Further, Champion Constructors says that confirmatory affidavits should have been sought from Mr Mandizha to prove service of these letters.

Champion Constructors also queries why Wish Properties was still asking if it owed anything if it had paid.

I have already stated there was nothing unusual about this enquiry in a hyperinflationary environment of the time. To bolster this view, on 11 May 2004, Champion Constructors itself wrote to Mr Wabatagore advising him that the long-awaited capital gains tax, presumably the cause of the long delay, had now been received from ZIMRA. The letter also outlined the amount that was outstanding, which Champion Constructors explained as owing to the accumulation of administrative costs as a result of inflationary costs for service maintenance. It asked every client on the Uplands Scheme to pay a stipulated additional amount to defray unforeseen costs.

In my view, this further proves that the enquiries to Messrs Mandizha and Partners had been on point.

Looked at in totality, the correspondence is convincing and the letters corroborate each other. They indicate that a sale had indeed taken place between Champion Constructors and Wish Properties and that there was every effort to follow up on transfer. Champion Constructors attack of the letter of May 11, 2004 on the grounds that it was a general circular and that it should, in any event, have been addressed to Wish Properties, and not to Mr Wabatagore, makes little sense since Mr Wabatagore was the Director of Wish Properties who had represented the latter in the agreement.

Furthermore, I agree with counsel for Wish Properties argument that once Mr Wabatagore had received assurances from Champion Constructors concerning the capital gains tax and outstanding sums to be paid, there was no reason to believe that the property would not now be transferred. The letter sufficiently affirms that impediments to transfer had been addressed. The allegation that the letter is possibly fabricated is not supported by any evidence.

Champion Constructors also disputes the Certificate of Development as having been issued on misrepresentation, but, again, nothing tangible is said in support of that contention.

Champion Constructors averments and challenges of these annexures are no more than vague objections.

The nature and content of the letters speak far more loudly and convincingly in support of a sale to Wish Properties than Champion Constructors bare denials of the existence of an agreement.

The inherent improbability of the sale not having taken place to Wish Properties is also supported by the fact that no evidence was placed before this court which shows that Champion Constructors has ever made any effort to vindicate its rights. Instead, at every turn, it has been Eunice Dzangare who has persistently taken action to enforce her rights.

The more recent letter, of August 2013, by Champion Constructors to the Sherriff, in which it indicated that it had long since subdivided the whole property and sold all Stands to individual owners, most who have already developed the Stands, is pertinent.

Champion Constructors cannot now simply wish this letter away because it suits it on the basis that was it written in respect of its Stands which do not form part of this litigation. It is a self-serving denial. Given its position that there was no agreement with Wish Properties regarding the Stand in question, it could just as easily have produced cogent evidence relating to whom it sold the Stand in question to and when.

Champion Constructors would however have had to explain how and why Eunice Dzangare has been on the property since 2003 with no disturbance.

To my mind, Champion Constructors is clearly taking advantage of the lost agreement.

Cases of developers failing to pass transfer have become an increasing headache before the courts. Where evidence supports, on a balance of probabilities, that the property in question was sold to a party, and the sale concluded, the court's primary concern is to ensure that justice is done between the parties.

Rather than lie about what she does not know, Mrs Wabatagore stuck to attesting to facts known to her and to producing what secondary evidence was in her possession.

On a balance of probabilities, the evidence averred points to an agreement between Wish Properties and Champion Constructors. In the circumstances, I conclude that the property should be transferred to Eunice Dzangare.

I grant the order as follows:

1. The application be and is hereby granted.

2. The first respondent shall sign transfer papers and take all necessary steps to pass transfer of the property called Stand 1006 of Certain Piece of Land Situate in the District of Salisbury, called remainder of Hilton of Subdivision A of Waterfall measuring 1,987 square metres, held under Deed of Transfer No. 7666/2001, into the first applicant's name, within 7 days of the service of this court order upon them, failing which the Sheriff for Zimbabwe or his lawful Deputy be and is hereby authorised to sign all transfer papers on the first respondent's behalf.

3. The second respondent shall pay costs of this application on a legal practitioner and client scale.