cause of action https://old.zimlii.org/taxonomy/term/10885/all en Fidelity Life Assurance Company of Zimbabwe v CF Holdings Ltd (HH 220-21, HC 1158/21) [2021] ZWHHC 220 (29 April 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/220 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>FIDELITY LIFE ASSURANCE COMPANY OF ZIMBABWE LIMITED </p> <p>versus</p> <p>CFI HOLDINGS LIMITED </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>FOROMA J</p> <p>HARARE, 16  &amp; 29 April 2021</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>D. Tivadar</em>, for the applicant </p> <p><em>T. Mpofu with R Mabwe, </em>for the respondent</p> <p> </p> <p>            FOROMA J: This is an urgent chamber application in terms of which the applicant Fidelity Life Assurance of Zimbabwe Limited hereinafter referred to as Fidelity seeks a provisional order whose terms of the final order sought and interim relief granted are as follows:</p> <p>            “TERMS OF THE FINAL ORDER SOUGHT</p> <p>            That you show cause to the Honourable Court why a final order should not be made in the following             terms:</p> <p>            1.         That a final interdict barring respondent from carrying out developments and construction                activities on the property being a certain piece of land situate in the District of Salisbury                               being the remaining extent of Langford measuring 2061,7256 acres and held under Deed                             of Transfer number 212/63 be and is hereby granted.</p> <p>            2.         That the respondent shall pay the costs of suit on the higher scale of legal practitioner and                client</p> <p>            INTERIM RELIEF GRANTED</p> <p> </p> <p>            Pending determination of this matter the applicant is granted the following relief:</p> <p> </p> <p>            1.         An order of spoliation be and is hereby granted against the respondent</p> <p>            2.         Applicant shall have its possession and all access restored in respect of the property being                a certain piece of land situate in the district of Salisbury being the remaining extent of                                  Langford measuring 2061,7256 acres and held under deed of Transfer number 212/63                                 within 24 hours of the service of this order.</p> <p>            3.         In the event of non-compliance with the order under paragraph 2 above the Sheriff of the                            High Court of Zimbabwe is ordered to enforce this interim order to allow applicant to                                   regain possession of the property being a certain piece of land situate in the District of                                  Salisbury being the remaining extent of Langford measuring 2061,7256 acres and held                                 under deed of Transfer number 212/63</p> <p>            4.         That the respondent be and is hereby interdicted from carrying out developments and                                   construction activities on the property being a certain piece of land situate in the District                               of Salisbury being the remaining extent of Longford measuring 2061,7256 acres and held                under deed of transfer number 2121/63 pending the determination of the dispute between                            the applicant and the respondent in relation to their shareholding in Langford estates (1962)             Private Limited.</p> <p>            5.         Costs be costs in the cause</p> <p> </p> <p>            Service of the Provisional Order</p> <p>             This provisional order shall be served upon the respondent by the applicant’s legal practitioners.”</p> <p> </p> <p>            The brief background to this urgent application according to the applicant’s papers is that the parties are shareholders in a company called Langford Estates 1962 (Private) Limited (hereinafter referred to as Langford) wherein applicant holds 80,77 percent issued share capital. Langford is the owner of a property described as a certain piece of land situate in the District of Salisbury being the remaining extent of Langford measuring 2061,7256 acres and held under deed of Transfer number 212/63 (hereinafter referred to as the property).</p> <p>            Applicant acquired the 80,77 percent issued share capital in Langford on 30 June 2015 in a sale of shares agreement with respondent occasioned by some financial fix that respondent found itself in together with Langford and Crest Poultry Group (Private) Limited. The sale of shares agreement was entered into to assist the respondent raise finances to the settle financial fix aforesaid.</p> <p>            Applicant claims that after the conclusion of the transaction (share sale agreement) it was granted possession and control of the property as the majority shareholder. Applicant  also claims that on 17 March 2021 applicant’s employee one Evas Chitute was forcibly and unlawfully barred from entering into the property by armed personnel contracted by respondent despite having duly identified himself as a person in applicant’s employ.</p> <p>            Applicant thus brought this application as it considered that respondent had despoiled it. Respondent strongly opposed the applicant’s application and in its opposing affidavit raised the following points in <em>limine:</em></p> <p>            (a)        Must pay costs</p> <p>            (b)        matter not urgent</p> <p>            (c)        invalid relief sought</p> <p>            (d)       interim and final relief</p> <p>            (e)        no cause of action and</p> <p>            (f)        disputes of fact and sought the dismissal of the application with costs on the higher                       scale</p> <p>            This matter initially came before Tsanga J who dismissed the matter on the technical ground that applicant had not used the correct form as provided in the rules of the court. Applicant immediately returned to court still on an urgent basis having removed the cause of the technical objection.</p> <p>            At the hearing of this application respondent which was represented by <em>Advocate T Mpofu</em> took up all the points in l<em>imine</em> except for (a) which though not expressly abandoned was not addressed in arguments.</p> <p>            I can only assume that the respondent did not find its prospects on this point in <em>limine</em> to be reasonable after considering applicant’s response to it in the answering affidavit.</p> <p>            I deal with the argument addressed by each party in respect of the remaining points in <em>limine</em> taken seriatim.</p> <p>(b)        Matter not urgent</p> <p>            The respondent considered that the matter was not urgent as the situation prevailing at the property had so prevailed even before the putative and now challenged agreements purportedly concluded in 2015. In addition respondent argued that it has at all times had management rights and applicant has never taken any occupation as indeed the applicant as a shareholder is entitled to no occupation. As indicated before, Applicant claimed under oath that its employee had been barred from entry. <em>Prima facie</em> the court without having to resolve the disputed legal rights associated with the substantive claim of spoliation must accept the applicant’s assertion under oath that it was forcibly barred from entry onto the property. Despoiling can either take the form of forcible ejection from premises or forcible exclusion from entry. Respondent did not dispute that applicant’s employee was forcibly excluded from entry on 12 March 2021. I therefore find that the matter is urgent on account of the events of 12 March 2021 as deposed to by the applicant’s employee under oath.</p> <p>(c)        Invalid Relief Sought</p> <p>            Respondent’s argument is that applicant has applied for spoliatory relief as interim relief based on a provisional order which order is obtainable on proof of a <em>prima facie</em> case. An order <em>mandamen van spolie</em> is a final order which can only be obtained on proof of a case on the normal standard of proof in civil matters i.e proof on a balance of probabilities. Applicant whilst accepting the legal position that a spoliation order is a final order argued that the applicant did not seek an interim order in respect of spoliation but in respect of an interim interdict. A consideration of the terms of the final order sought by applicant reveals that no reference is made to the interim order of spoliation suggesting that the spoliation order was intended to be a final order. However seeking or obtaining a final order as a provisional order is contradictory in terms. In paragraph 3 of the interim relief of the provisional order applicant worded the relief sought as follows:</p> <p>            “In the event of non compliance with the order under paragraphs 2 below, the Sheriff of the High    Court of Zimbabwe is ordered to enforce this interim order to allow applicant to regain possession             of the property…” (underlining for emphasis)</p> <p> </p> <p>            It is clear that applicant sought an order of spoliation as interim relief under a provisional order contrary to the law. See <em>Blue Rangers Estates P/L</em> v <em>Muduvuri and Anor</em> 2009 (1) ZLR 368 (S). Applicant did not help its situation in the answering affidavit when it averred as follows:</p> <p>            “6.1     It is denied that the relief sought is invalid. Whilst spoliatory relief is final in nature the                                 same can only be in the provisional order being sought.”</p> <p> </p> <p>             Clearly the respondent is on firm ground in its argument that the relief sought is invalid.</p> <p> </p> <p>(d)       Interim and final relief</p> <p>            The respondent also argued that the application is also invalid on account of the substantive similarity in the terms of the interim and final relief sought in so far as the interim interdict is concerned. Citing the case of <em>Rolland Electro Engineering P/L</em> v <em>Zimbank</em> 2003 (1) ZLR 226 <em>Advocate Mpofu</em> submitted that the reason for the prohibition of the similarity is clear and it is to prevent a party from securing final relief on proof of a <em>prima facie</em> case. Applicant readily acceded this point in <em>limine</em>.</p> <p>(e)        No cause of Action</p> <p>            This was premised on the fact that applicant while claiming to be a major shareholder acknowledged that the owner of the property was Langford in which he held shares and it (applicant qua shareholder) could not enforce the right of possession which belonged to an owner. Applicant sought to argue that by reason of its being the majority shareholder more than 80 percent it was granted the right of control of the property.  Respondent strongly disputed applicant’s claim in this regard. This issue is so inter linked to the last point in <em>limine</em> (disputes of fact) it is not possible to resolve it on the papers least of all in an urgent chamber application</p> <p>(f)        Disputes of Fact</p> <p>            The applicant conceded that although there were material disputes of fact the relevant one being whether or not applicant was in physical control of the property prior to the alleged despoiling, this could be resolved by the judge taking a robust view of the evidence. Applicant’s counsel accepted that the parties’ positions were so diametrically opposed one of them must have lied under oath. Asked who between the deponents the judge should believe Mr <em>Tivadar</em> (counsel for the applicant) urged the court to believe the applicant on the basis that it (applicant) had placed before the court evidence of activity on the property which was consistent with control of the property against respondent who made bare denials under oath. The respondent disputed that correspondence allegedly showing activity was addressed to applicant. Respondent’s counsel argued that the only way to resolve material dispute of fact in the circumstances is by hearing evidence which entailed the court making findings on credibility which cannot be done in an urgent chamber application. Applicant ought to have appreciated this real and material dispute of fact when the issue was raised at the time the matter appeared before TSANGA J and should not have insisted on bringing back the matter as an urgent chamber application but as an urgent court application-<em>Andrew John Pascoe</em> v <em>Ministry of Lands and Rural Resettlement</em> <em>and W Bungu and the Attorney General </em>HH 391/17</p> <p>COSTS</p> <p>            Respondent urged the court to dismiss applicant’s application and award it costs on the higher scale of legal practitioner and client. Counsel for respondent argued that applicant did not argue why such order should not follow in view of the same points in <em>limine</em> having been raised about 3 weeks earlier before Tsanga J. Applicant succeeded on the issue of urgency. It however lost in respect of the other points in <em>limine</em> raised not because they persisted on a hopeless argument. For example the concession on the substantially similar relief in the final order sought and interim relief granted was a proper one. Applicant’s argument on invalidity of relief sought was one that arose from the documents filed even though it did not succeed on it. In the circumstances I do not find costs on the higher scale to be justified.</p> <p> </p> <p>DISPOSITION</p> <p>            It is ordered that for the foregoing reasons applicant’s application be and is hereby dismissed with costs.</p> <p><em>Mawere Sibanda Commercial Lawyers</em>, applicant’s legal practitioners</p> <p><em>Nyawo Ruzive</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/220/2021-zwhhc-220.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22701">2021-zwhhc-220.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/220/2021-zwhhc-220.pdf" type="application/pdf; length=332965">2021-zwhhc-220.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/company">COMPANY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/shareholder">Shareholder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/shares">Shares</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cause-action">cause of action</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-spoliation-order">application for spoliation order</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/11">Pascoe v Ministry, Lands and Rural Resettlement &amp; Others (HH 11-17 , HC 12511/16) [2017] ZWHHC 11 (11 January 2017);</a></div></div></div> Mon, 17 May 2021 08:28:11 +0000 Sandra 10002 at https://old.zimlii.org Gandawa v Gopoza & 3 Ors (HH 221-21, HC 4826/20) [2021] ZWHHC 221 (29 April 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/221 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ESTER GANDAHWA</p> <p>versus</p> <p>JOSHUA GOPOZA</p> <p>and</p> <p>FANUEL KAPANJE</p> <p>and</p> <p>MARIMBA INDUSTRIAL PROPERTIES LIMITED</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 19 March &amp; 29 April 2021</p> <p> </p> <p><strong>Opposed Matter</strong></p> <p><em>D. C Kufaruwenga</em>, for the applicant</p> <p>1st respondent in default</p> <p><em>F Mushoriwa</em>, for the 2nd respondent</p> <p><em>I.A Ahmed</em>, for the 3rd respondent</p> <p>            MUZOFA J: This is a case of a double sale of an immovable property known as stand Number 2657 Aspindale Gated Community “the property”.</p> <p>            Joshua Gopoza “Joshua” the culprit in this case purchased the property from Marimba Industrial Properties Limited, the third respondent which holds title in the property. On 13 November 2018 Joshua sold the property to the applicant for US$45 000. He was paid US$25 000 upon signature. The balance was payable over 8 months. Three days later and despite the contract he entered into with the applicant, he entered into another contract with the second respondent for the sale of the same property on 16 November 2015, this time for a whooping US$140 000. The amount was paid upon signature on the contract. Thus, Joshua sold the same property twice within a week.</p> <p>            It was a condition of the agreement between Joshua and the applicant that occupation transfer of title shall be taken upon payment of the full purchase price. A similar term was in the second agreement. Since the second respondent paid the full purchase price first, he took occupation before the applicant. Both purchasers have not taken transfer. At one point Joshua threatened to cancel the agreement of sale with the applicant. The applicant obtained an order declaring the agreement of sale between the parties valid and compelling transfer of title under HC 9584/19. When she tried to enforce the said order, the applicant discovered that the property was already occupied, albeit by the second respondent.</p> <p>            A season of court applications ensued between the parties until the parties eventually agreed to pursue this one application for a final determination.</p> <p>            The applicant seeks various relief , a declaration that her agreement of sale is valid, cancellation of the agreement of sale between  the first and second respondents, that the agreement of sale between the second and third respondents be declared null and void, first , second and third respondents to give vacant possession of the property to the applicant and to take the necessary steps to transfer the property into applicant’s name and in the event of non-compliance the sheriff of the High Court or his lawful deputy be authorised to sign all the  necessary documents to effect transfer.</p> <p>            The first respondent, Joshua for obvious reasons did not file any response. The second and third respondents opposed the application. The second respondent also filed a counter application. The fourth respondent opted not to file any response.</p> <p>            In his counter application, the second respondent seeks transfer of title to his name from the third respondent. In the event of non-compliance, the sheriff of Zimbabwe or his lawful deputy be authorised to sign all the necessary documents to effect transfer.</p> <p>            A point was taken in l<em>imine</em> which I directed should be raised as part of the merits of the case. I deal with issue raised first. It was submitted for the second respondent that the applicant has no cause of action that supports the relief sought. The applicant cannot compel the third respondent to transfer the property to her. There is no contractual relationship between the parties. Similarly the applicant cannot compel the second and third respondents to give vacant possession to her since there is no contractual relationship between the parties. The applicant holds personal rights as against the first respondent. Personal rights cannot be enforced against any other person except as against the person the applicant contracted with.</p> <p>            The applicant did not address the issue in her answering affidavit neither was it traversed in her heads of argument. A cursory oral submission was made that a contractual relationship between applicant and the said respondents is not a pre - requisite in such an application. I was not referred to any law or authority to support this proposition.</p> <p>            A cause of action is the sum total of facts or legal theory that gives an individual or entity the right to seek a legal remedy. The cause of action must be fully set out in the founding affidavit.</p> <p>            In this case the applicant does not set out any facts that give rise or that entitle her to seek a remedy as against the third respondent. The third respondent is just mentioned as the holder of title in the property. As correctly submitted for the second respondent, the first respondent ceded his personal rights in the property to the applicant. The applicant therefore has personal rights in the property. A cession is a bilateral agreement transferring rights. It was described in <em>Hippo Quarries (TVL) (Pty)</em> v <em>Eardley </em>1992 (1) SA S67A at 873 E – F as follows,</p> <p>“Cession it is trite, is a particular method of transferring a right. The transfer is effected by means of agreement. The agreement consists of concurrence between the cedent’s <em>animus transferrendi </em>of the right and the cessionary’s corresponding <em>animus acquirendi</em> of the right.”</p> <p>            It is not a method to transfer real rights see <em>Madzima</em> v <em>Mate</em> HH 86/17. Where a cession takes place the rights vest in the cessionary.</p> <p>            In <em>casu,</em> the applicant as a cessionary, acquired personal rights as against the first respondent. Having clad herself with personal rights, such rights cannot be enforced against any other person as except the first respondent. The first respondent did not acquire real rights from the third respondent. Therefore the first respondent could not pass rights greater that what he had acquired. In the result, the applicant did not acquire real rights from the first respondent that she can enforce them against the whole world.</p> <p>            The applicant cannot seek transfer from the third respondent, the registered owner of the property. There is no contractual obligation between the parties. It is  a general principle of the law of contract that a contract is a matter between the parties thereto and no one who is not a contracting party will incur any liability or derive any benefit from the terms thereof  (See generally Christie <em>The Law of Contract in South Africa</em> 5th Edition at pages 260- 261). On the application of the doctrine of privity of contract the second and third respondents are not bound by the agreement between the applicant and the first respondent. It therefore follows that, the third respondent not being party to the agreement and in the absence of ratification of the agreement cannot be compelled to give effect to the terms thereof by giving transfer of ownership of the property to the applicant. I find that the applicant has no cause of action against the third respondent <em>ex contractu</em> similarly the applicant cannot compel the second respondent to do anything to facilitate transfer or possession. The second respondent is neither an administrative body to facilitate such or in a contractual relationship with the applicant giving rise to such obligations.</p> <p>            Granting an order as prayed for by the applicant, to order the third respondent to take all such necessary steps to effect transfer has its challenges. The third respondent may have certain requirements to be fulfilled before transfer which the applicant is not privy to since there is no agreement between the parties. I find the order sought in paragraphs four and five not proper in respect of the second and third respondents. Simply put the applicant has no cause of action for the transfer of the property as against the second and third respondent.</p> <p>            My finding on the cause of action does not dispose of the matter completely. I shall deal with the real issue that the parties placed before the court for determination. The real issue for determination is which agreement should be given effect to.</p> <p>            The law on double sales is now settled. The Supreme Court in <em>Guga</em> v <em>Moyo and others</em> 2000 (2) ZLR 458 (SC) which both parties relied on unpacked it as follows,</p> <p>“The basic rule in double sales where transfer has not been passed to either party is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller, which is usually small comfort. But the rule applies only in the absence of special circumstances affecting the balance of equities”.</p> <p>See McKerron (1935) 4 SA Law Times 178, Burchell (1974) 91 SALJ 40 …..And in BP Southern Africa (Pty) (Ltd) v Densden Properties (Pvt) Ltd 1964 RLR 7 (G), MacDonald J (as he then was) said,</p> <p>            “In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim to damages for breach of contract. I do not suggest that his should be the invariable rule, but I agree with the view expressed by Professor McKerron that save in “special circumstances” the first purchaser is to be preferred.”</p> <p>“….. the broad principle as set out above was acknowledged to be our law in <em>Barros and Another </em>v <em>Chimphonda 1</em>999 (1) ZLR 58 (s) …. Similarly, in <em>Charuma Blasting and Earthmoving</em> S<em>ervices (Pvt) Ltd</em> v <em>Nyainjai and others</em> 2000 (1) ZLR 85 (S)</p> <p>See also <em>Crundall Brothers (Pvt) Ltd </em>v<em> Lazarus NO and Another</em> 1991 (2) ZLR 125 (S).The onus is on the second purchaser to prove the special circumstances tilting the balance of equities in his or her favour. This is the approach in the South African courts per Van Zyl <em>in Gugu and Another </em>v<em> Zongwana and Others</em> (2014) 1 ALL SA 203 who expressed it as follows,</p> <p>‘The accepted approach to successive sales and competing rights is that as a point of departure, the possessor of the earlier right, in this case is the appellants, is entitled to specific performance, unless the second purchaser can show that the balance of fairness is in his favour…’</p> <p>The same applies in our jurisdiction <em>see Barros and Another </em>v <em>Chimphonda</em> (supra) where the court had this to say,</p> <p>‘One further point needs to be underscored. It is the 2nd Appellant (2nd purchaser) bore the burden of establishing on  a preponderance of equities in its favour …Put differently, it was for the 2nd appellant to prove the special circumstances which rendered it inequitable to apply the maxim , ‘qui prior est tempore est jure’ in favour of respondent.</p> <p>            In short, the first purchaser must succeed where title has not passed to either party unless special circumstances exist in favour of the second purchaser. There is no definition of special circumstances in double sales, but courts have considered individual factors for each party and their effect on the balance of equities. The second purchaser must prove such special circumstances. It is not enough to merely allege certain factors.</p> <p>             In <em>Mwayipaida Family Trust </em>v<em> Madoroba</em>  <em>and Others</em> SC 22/04   in a case where title had passed to the second purchaser the Supreme Court confirmed the cancellation of the  deed of transfer in favour of the first purchaser. The court considered that the first purchaser had done everything possible to protect its rights but for some reasons beyond it, its rights were not secured exposing the first purchaser to the transfer. In <em>Guga </em>v<em> Moyo</em> (supra) the court accepted as special circumstances that the second purchaser had taken occupation, she had undertaken renovations in the sum of $78 024.63, she bought the property in good faith and she bought the property for almost double the price of the first sale.</p> <p>The second respondent highlighted the special circumstances that should tilt the balance of equities as follows: that he paid US $140 000 as purchase price which is almost triple the amount paid by the applicant. He expended a further US$45 000 on improvements and is now in occupation. He bought the property in good faith, there is no evidence that he was aware of the first sale. As correctly submitted, there was no proof, in the form of receipts that the second respondent used an additional US$45 000 in improvements. I am unable to dismiss this averment because it was not disputed that the property was a shell house, obviously it required some expenditure to make it habitable. The second respondent attached photographs of builders working on the property. The applicant confirmed that, when she attempted to serve some court process, she found the second respondent’s builders working at the property. Taken cumulatively there is evidence that some improvements were made on the property even if there are no receipts to show the amount of expenditure incurred.</p> <p>The last special circumstance which is disputed is that the second respondent has entered into an agreement of sale with the third respondent, the title holder. The agreement of sale was attached. The third respondent conceded that the ‘sale’ was just meant to enable transfer of rights from the third respondent to the second respondent. There was no expectation of any payment to be made as the purchase price by the second respondent. It is on that basis that the applicant seeks a cancellation of the agreement of sale. It was argued for the applicant that, the parties to the agreement misrepresented that payment would be made yet no such payment was intended neither was a sale intended by the parties. The agreement is fraudulent and must be cancelled.</p> <p>A valid agreement of sale exists where the parties who have the capacity to contract agree, the existence of the thing sold (<em>merx</em>) and the price. The fulfilment of the obligations has nothing to do with the validity of the contract. Where a contract is tainted by some illegality the court cannot enforce it.</p> <p>In my view the agreement of sale between the parties satisfy the requirements of a valid sale. The concession made that there was no intention to exchange the money for the property in my view cannot invalidate the agreement. The fact of the matter is that the third respondent has already received the consideration for the property from the first respondent. This is a matter more of inept legal advice to both parties as opposed to any fraudulent intention. A tripartite agreement would have been the proper agreement in this matter. Some peripheral issue was raised on the dates of the agreement which l believe have no effect on the agreement.  Even if my finding on the agreement of sale maybe incorrect I am fortified in the fact that the second respondent has engaged the title holder who is not opposed to the transfer of title to the second respondent. The application can be granted in the face of non-opposition by the party against whom relief is sought.  </p> <p>It was also submitted that the second respondent had already initiated the process to take transfer. No proof was attached to confirm such processes.</p> <p>The applicant highlighted her circumstances that she could not take occupation as the first respondent blocked her, she is a poor widow, she used part of her late husband’s pension to pay the deposit and she is unable to raise money to purchase another property. On the other hand, the second respondent seems capable of raising money to buy another property.</p> <p>In my view when it comes to resources both parties are in the same predicament, they have both purchased a property for a considerable amount and have expectations to be met.</p> <p>A value judgment with mathematical precision is difficult to come up with because both parties have suffered substantial prejudice. However, the court must come up with a decision. In this case the second respondent is a <em>bona fide</em> purchaser. Taken cumulatively the second respondent’s circumstances present special circumstances tilting the balance of equities heavily in his favour. Although the amount paid <em>per se</em> is not a special circumstance, however if taken in conjunction with the fact that the second respondent is in occupation, has effected some improvements and has engaged the owner. I find no difference between his circumstances and that before the court in <em>Guga </em>v<em> Moyo</em> (supra). The court appreciates the difficulties that beset the applicant throughout the process, but her position can only be remedied by way of damages as against the first respondent. The applicant’s claim should therefore fail in its totality.      </p> <p>The Counter Claim</p> <p>The parties shall be referred to as in the main claim for consistency. In his counter claim, the second respondent seeks transfer of title from the third respondent. No relief is sought as against the applicant except for costs on a higher scale. The third respondent has not opposed the counter claim. I take it the third respondent has no objection to the transfer.</p> <p>The applicant (the respondent in the counter application) has opposed the application. The matter is simply the other side of the coin in the main application. Both parties rely on the same averments as set out in the main application. It is therefore of no benefit to revisit the issues. My decision in the main matter invariably has a bearing on the counter claim. Since the second applicant has established the special circumstances that tilt the balance of equities, he is entitled to the claim for specific performance.</p> <p>The second respondent looks to the applicant for costs on an attorney client scale for the unnecessary litigation. I do not agree with the basis for the claim of costs. The applicant was the first purchaser in this case and was standing on firm ground save for the special circumstances proved by the second respondent. Costs usually follow the cause but are in the discretion of the court. In this case I find it equitable for each party to bear its own costs.</p> <p>Accordingly, the following order is made.</p> <ol> <li>The main application is dismissed in its totality.</li> <li>The counter application is granted.</li> <li>The 3rd respondent is hereby ordered to take such steps and do all things as may be necessary to effect transfer of Stand No 2657 Aspindale Gated Community, Harare measuring 200 square meters in extent into the 1st respondent’s name within 7 days of this order.</li> <li>In the event that the 3rd respondent does not do so within 7 days of service of this order upon it, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to sign all documents and do all such things as are necessary to ensure that the transfer referred to in paragraph 1 of this order is effected.</li> <li>Each party to bear its own costs.</li> </ol> <p><em>Dzimba,Jaravaza and Associates</em>,Applicants’ Legal Practitioners.</p> <p><em>Nyawo, Ruzive Legal Practice</em>,1st Respondent’s Legal Practitioners.</p> <p><em>Mushoriwa Pasi Corporate Attorneys</em>,2nd Respondent’s Legal Practitioners.</p> <p><em>Ahmed &amp; Ziyambi,</em> 3rd Respondent’s Legal Practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>             </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/221/2021-zwhhc-221.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32571">2021-zwhhc-221.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/221/2021-zwhhc-221.pdf" type="application/pdf; length=350047">2021-zwhhc-221.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cause-action">cause of action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/double-sale">Double sale</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property-double-sale">immovable property (Double sale)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/86">Madzima v Mate (HH 86-17 HC 10225/13) [2017] ZWHHC 86 (08 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2004/22">Mwayipaida Family Trust v Madoroba and Others ((74/02) ) [2004] ZWSC 22 (12 May 2004);</a></div></div></div> Mon, 17 May 2021 08:10:10 +0000 Sandra 10001 at https://old.zimlii.org Minister of Environment, Water and Climate v South Arican Airways Limited & Another (HH 11-20, HC 7054/14) [2020] ZWHHC 11 (08 January 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/11 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MINISTER OF ENVIRONMENT, WATER &amp; CLIMATE</p> <p>versus</p> <p>SOUTH AFRICAN AIRWAYS LIMITED</p> <p>and</p> <p>CIVIL AVIATION AUTHORITY OF ZIMBABWE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 11, 12 June 2018, 6 March, 8 July 2019 &amp; 8 January 2020</p> <p> </p> <p> </p> <p><strong>CIVIL TRIAL</strong></p> <p> </p> <p><em>M Tshuma</em>, for the plaintiff</p> <p><em>A Moyo</em>, for the 1st defendant</p> <p><em>H Nkomo</em>, for the 2nd defendant</p> <p> </p> <p>             TAGU J:  The plaintiff initially issued summons against the first defendant on the 20th August 2014 seeking the payment of US$877 435.00 for arrear meteorological weather services fees, payment of further meteorological weather services fees from 1st May 2014, interest from date of service of summons to date of final payment, cost of suit and collection commission in terms of the Law Society of Zimbabwe’s by-laws.</p> <p> An application for the joinder of the Civil Aviation Authority of Zimbabwe as the second defendant was later made by the first defendant and was granted since the first defendant claimed in its plea that it paid all the meteorological fees to the second defendant who is the plaintiff’s collecting agent. In its amended declaration the plaintiff stated that unless the second defendant opposes the plaintiff’s claim and or has been indeed paid what is due to the plaintiff by the first defendant and did not remit same to plaintiff, no order or relief is sought against second defendant by the plaintiff and is not liable to pay costs of suit that the second defendant may incur in these proceedings.  </p> <p>The plaintiff, being the Minister of Environment, Water and Climate being represented by the Permanent Secretary who is also the Chief Accounting Officer of the Ministry Mr Prince Mupazviriho in his official capacity stated in his declaration that the plaintiff is entitled to claim the said fees in terms of the Meteorological Services Act [<em>Chapter 13.21</em>] and the Meteorological Services (Aviation Weather Services) Regulations 2005 (Statutory Instrument 32 of 2005). In terms of Statutory Instrument 12 of 2005 the Regulations apply to all over-flights within the Zimbabwe Flight Information Region and all domestic and International flights landing and departing from those aerodromes where meteorological facilities are available. The plaintiff said the first defendant’s aircraft used and continues to use the aerodrome facilities provided by the plaintiff making it liable to pay meteorological weather services departure fees, landing fees and over-flight fees as provided for by the respective schedule to the Meteorological Services (Aviation Weather Services) Weather Regulations 2005. However, in breach of its obligations to pay the said fees, the first defendant failed, neglected or refused to pay the said fees and levies to the extent that as at 31st April 2014 first defendant was indebted to the plaintiff in the sum of US$877 435.00 and continue to incur.</p> <p>In its plea the second defendant made it clear that indeed the first defendant is at law liable to pay the plaintiff in respect of the meteorological weather services departure fees, landing fees and over-flight fees that are claimable in terms of SI 32 of 2005. It further admitted that it has always been the collecting agent for the plaintiff. It therefore clarified that at all material times it invoiced the first defendant for payments due to itself and the plaintiff distinguishing that which is due to it as “aeronautical services” and that due to the plaintiff under the heading “met fees”. It therefore said the first defendant is refusing to pay the “met fees” that are due to plaintiff in terms of SI 32 of 2005.        </p> <p>The issues to be determined in this case were captured in the joint Pre –trial conference minute filed of record. However, at the hearing of the case the parties agreed that the first defendant was the only one to defend the plaintiff’s action.</p> <p>The plaintiff led evidence through two witnesses, Mr Morris Vengesai Sahanga and Mrs Grace Tsitsi Mutandiro and closed his case. The plaintiff had successfully shown through his two witnesses that the first defendant was the only aircraft that had not paid for the service fees.</p> <p>At the close of the plaintiff’s case the first defendant made an application for absolution from the instance by raising a sole point of law that the plaintiff <em>in casu</em> had no statutory locus standi to sue the first defendant in terms of the Meteorological Services Act since there is no legal nexus between plaintiff and second defendant entitling the former to institute the current proceedings. It submitted that the sole and exclusive statutory responsibility to supply meteorological services to the Airline Industry rests with the Civil Avian Authority of Zimbabwe (CAAZ). In short the first defendant was saying CAAZ should be the plaintiff and not the Minister of Environment, Water and Climate since the first defendant discharged its obligations to CAAZ for payment of aeronautical services which include meteorological services (per sections 45 and 47 of the Civil Aviation Act [<em>Chapter 13.16</em>]) and for that reason the plaintiff had not established a cause of action and even if the rights created in terms of the Meteorological Services Act had been for the plaintiff’s benefit, a proper interpretation of the Act would not have given the plaintiff a right of action as against the first defendant.</p> <p>The second defendant submitted that it would abide by the decision of the court.</p> <p>Note must be taken that the issue raised by the first defendant in its application for absolution from the instance was not one of the issues captured in the Joint Pre-Trial Minute nor was it an attack on the evidence led by the plaintiff. It was raised as a point of law which can be raised at any point that the plaintiff did not have the requisite locus standi to sue the first defendant.</p> <p>Having heard submissions by counsels the court dismissed the application for absolution from the instance after holding that the plaintiff had the requisite locus standi to sue the first defendant since CAAZ was merely a collecting agent of the plaintiff. The court then ordered the first defendant to give evidence in its defence.</p> <p>However, the first defendant opened and closed its case without giving evidence. The first defendant then raised other points of law in its closing submissions instead of leading any evidence particularly that the first part of the plaintiff’s claim is prescribed, that the plaintiff may only claim payment of fees from the period after the administration of the Meteorological Services Act was assigned to her, and that there is no cause of action that has been established by the plaintiff. The approach adopted by the first defendant is supported by authorities and this court found nothing untoward about that despite the plaintiff submitting to the contrary.</p> <p> It is trite that a point of law may be raised at any stage of the court proceedings, including on appeal. In<em> Muchakata</em> v <em>Netherburn Mine</em> 1996 (1) ZLR 153 (S) the Supreme Court held thus at p157A:</p> <p>“Provided it is one which is required by a definitive law to be specially pleaded, a point of law, which goes to the root of the matter, may be raised at any time, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed: <em>Morobane </em>v <em>Bateman</em> 1918 AD 460, <em>Paddock Motors (Pty) Ltd</em> v <em>Igesund</em> 1976 (3) SA 16 (A) at 23D-G.”</p> <p> </p> <p>Further in <em>Nissan Zimbabwe (Private) Limited</em> v <em>Hopitt (Private)</em> 1997 (1) ZLR 569 (S) the Supreme Court said the following at 571-572-</p> <p>“Raising the point of law at this stage does not introduce any new matter into the case; the legal objection to the claim arose upon the matter which was before the court below, though this particular argument upon that matter was not there presented for consideration and, consequently, did not fall for determination.”</p> <p> </p> <p>So a point of law can be raised at any point.</p> <p><em>In casu</em>, and as more fully appears above, the facts of the matter are largely common cause and the disposition of the matter largely turns on the questions of law. In the circumstances, contrary to the submissions made in the plaintiff’s Closing Submissions, nothing turns on the fact that the first defendant chose not to lead any evidence. I will straight away proceed to deal with the points of law raised by the first defendant in its defence.</p> <ol> <li><strong>HAS PART OF THE PLAINTIFF’S CLAIM PRESCRIBED?</strong></li> </ol> <p>The plaintiff claims payment for the alleged meteorological weather service fees. According to the summons, the plaintiff’s claim is for the period running from January 2006 to April 2014 and thereafter until the payment is made since the first defendant continues to incur the debt. The plaintiff’s summons were issued on the 20th of August 2014 and served on the first defendant on the 22nd of August 2014. The first defendant’s contention is that the plaintiff’s claim for any fees raised before 22nd August 2008 is prescribed. It relied on the provisions of section 15 (c) (ii) of the Prescription Act to the effect that a debt due to the State is extinguished by prescription after six (6) years. On the other hand the plaintiff averred that the debt is covered in terms of Section 15 (a) of the Prescription Act and not in terms of Section 15(c). the plaintiff argued therefore that the debt has not prescribed and is still claimable as the period in question has not reached 30 years per section 15 (a) of the Prescription Act.</p> <p>Section 15 of the Prescription Act provides various periods of prescription for various debts. For avoidance of doubt the whole of section 15 of the Prescription Act provides as follows-</p> <p><strong>          “15 Periods of prescription of debts</strong></p> <p>The period of prescription of a debt shall be-</p> <ul> <li>thirty years, in the case of –</li> </ul> <ul> <li>a debt secured by mortgage bond;</li> <li>a judgment debt;</li> <li>a debt in respect of taxation imposed or levied by or under any enactment;</li> <li>a debt owed to the State in respect of any tax, royalty, tribute, share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances,</li> </ul> <ul> <li>fifteen years, in the case of a debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor unless a longer period applies in respect of the debt concerned in terms of paragraph (a);</li> <li>six years in the case of –</li> </ul> <ul> <li>a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract;</li> <li>a debt owed to the State;</li> </ul> <p>unless a longer period applies in respect of a debt concerned in terms of paragraph (a) or (b);</p> <ul> <li>except where any enactment provides otherwise, three years, in the case of any other debt.”</li> </ul> <p> </p> <p>My interpretation of the whole s 15 of the Prescription Act shows that a number of situations are applicable in this case. Sections 15 (a) (iii), (iv), section (b) and section (c) (ii) creates a bit of uncertainty in that on one hand some sections talk of debts owed to the State and on the other hand some sections talk of debts in respect of taxes imposed or levied by or under any enactments. <em>In casu </em>we are dealing with some levies that the first defendant is obligated to pay under the relevant enactments, especially the Meteorological Services Act. For that reason this is not only a debt due to the State but also levied under some enactments. It would not be correct to strictly interpret that the debt is a debt owed to the State only and disregard statutory obligations. I would therefore agree that the debt <em>in casu</em> is also covered under s 15 (a) and for that reason part of the debt is not prescribed.</p> <p><strong>CAN PLAINTIFF CLAIM FOR FEES AFTER DATE OF ASSIGNMENT OF THE ACT ONLY?</strong></p> <p>It is common cause that at the time that the Meteorological Services Act was promulgated it was administered by the Minister of Transport and Communications. The administration of the Act was assigned to the Minister of Environment, Water and Climate, the plaintiff on 7th February 2014 by virtue of Statutory Instrument 29 of 2014. The first defendant averred that the plaintiff can only properly claim payment for fees raised after 7th February 2014. I however, tend to disagree with this reasoning. My belief is that once someone has been assigned to administer any Statute, or a department, and finds that at the time of his or her takeover, that department is owed some money which debt was accrued before the takeover, there is nothing wrong for that person to take action to recover the debt owed before his or her take over. I therefore find that the plaintiff can perfectly claim for fees due to the department she took over before her assignment.</p> <p><strong>HAS PLAINTIFF ESTABLISHED A CAUSE OF ACTION AGAINST THE FIRST DEFENDANT?</strong></p> <p>It is common cause that the first defendant is obligated to pay meteorological weather services fees and other statutory fees. The second defendant in its plea made it clear that indeed the first defendant is at law liable to pay the plaintiff in respect of the meteorological weather services departure fees, landing fees and overflight fees that are claimable in terms of Statutory Instrument 32 of 2005. A close look at the amended summons clearly show that the plaintiff is claiming from the first defendant the sum of US877 435.00 being the outstanding meteorological weather services fees for the period of January 2006 to 30th April 2014. The summons further shows that the plaintiff is claiming payment by the first defendant of all and further outstanding meteorological weather service fees from 1st May 2014 to date of final payment. The first defendant in its plea claimed to have paid all the fees to CAAZ, a fact disputed by CAAZ. Therefore the plaintiff has established a cause of action against the first defendant.</p> <p>The court therefore found that the plaintiff has managed to prove that it had a right to sue for the payment of the said fees. It claimed what is due to it in terms of the Act and as per invoices that were sent to the first defendant through the second defendant who for all intents and purposes, was and remains its agent. The first defendant’s failure, refusal or neglect to pay has no lawful justification and as it is denying the plaintiff its right to recover costs as per the statutory law and by so doing it has breached the laws of Zimbabwe. In fact the first defendant has not defended the claim before this court. Its pleadings are a relict with inconsistences. It left the court with a duty to guess as to what is first defendant’s defence to the claim as it raised one point of law and another. It chose not to lead any tangible evidence on anything. The bundle of documents being filed of record by the first defendant has not been explained to the court. Wherefore the plaintiff has proven its case on a balance of probabilities against the first defendant and is therefore entitled to judgment against first defendant with costs as prayed for in the summons.</p> <p>IT IS ORDERED THAT</p> <ol> <li>The 1st Defendant be and is hereby ordered to pay to the Plaintiff the sum of US$877 435.00 being the outstanding meteorological weather services fees for the period of January 2006 to 30th April 2014.</li> <li>Further, the 1st Defendant be and is hereby ordered to pay all and further outstanding meteorological weather service fees from 1st May 2014 to date of final payment.</li> <li> </li> <li>Costs of suit on a legal practitioner and client scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Chinamasa, Mudimu &amp; Maguranyanga</em>, plaintiff’s legal practitioners</p> <p><em>Kantor &amp; Immerman</em>, 1st defendant’s legal practitioners</p> <p><em>Mhishi Nkomo legal practice</em>, 2nd defendant’s legal practitioners                                                   </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/11/2020-zwhhc-11.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25218">2020-zwhhc-11.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/11/2020-zwhhc-11.pdf" type="application/pdf; length=319914">2020-zwhhc-11.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/aviation">AVIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/air-carrier">Air carrier</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/civil-aviation-authority">Civil Aviation Authority</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cause-action">cause of action</a></li></ul></span> Tue, 18 Feb 2020 06:58:53 +0000 Sandra 9485 at https://old.zimlii.org Chimwanengara v The Sheriff of the High Court of Zimbabwe N.O & Another (HH 487-18, HC 3950/18) [2018] ZWHHC 487 (20 August 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/487 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>OTTO CHIMWANENGARA</p> <p>versus</p> <p>THE SHERIFF OF THE HIGH COURT OF ZIMBABWE (N.O)</p> <p>and</p> <p>DEBRA CHAMBARA</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 17 July 2018 &amp; 20 August 2018</p> <p> </p> <p> </p> <p><strong>Opposed Application – exception</strong></p> <p> </p> <p><em>A Nyamupfukudza,</em> for the respondent (plaintiff)</p> <p><em>G Sithole</em>, for the 1st defendant</p> <p><em>G Nyengedza</em>, for the excipient (2nd  defendant)</p> <p> </p> <p>            MUZOFA J: This is an exception by the second defendant to summons issued out of this court by the plaintiff on 2 May 2018 against the defendants.</p> <p>             In the summons the plaintiff alleged  that sometime in 2014 on the instructions of the second  defendant, an auction was conducted by auctioneers Hammer and Tongues in respect of an immovable property stand 783 Bannockburn Township . Plaintiff’s bid won and he paid US$36 500.00. The sale was confirmed and he deposited the transfer fees with the conveyancers. In due course, however he was advised by the conveyancers that the sale had been rescinded and the property sold by private treaty to the second defendant without his knowledge. Plaintiff applied to place a caveat on the property which was served on the first defendant. Despite knowledge of what was taking place in respect of the property, the first defendant advised the conveyancers to transfer the property to the second defendant. The first defendant continued to hold on to the purchase price paid by the plaintiff. According to the plaintiff the first defendant should have advised the plaintiff of the developments since he was an interested party. To that extent plaintiff sought an order for</p> <ol> <li>Transfer of stand 783 Bannockburn Township of stand 1 Bannockburn into his name.</li> <li>The sale by private treaty of the same property to the second defendant to be declared null and void.</li> <li>The transfer of the property to second defendant be declared null and void</li> <li>The costs be in the cause.</li> </ol> <p>            The first defendant requested for further particulars that were not furnished. The exception by the second defendant was pleaded as follows;</p> <p>“1. The summons does not disclose a “true and concise statement of the nature, extent and grounds of the cause of action…” against the second defendant as required by</p> <ul> <li> </li> </ul> <ol> <li>There is no causal link between the second defendant and the plaintiff.</li> <li>The summons wrongly cited the second defendant, in respect of whom there is no nexus</li> </ol> <p>which itself is an elementary error of drafting pleadings.</p> <ol> <li>Furthermore in any event, the summons purports to challenge transfer yet it does not allege fraud or any such misadventure”.</li> </ol> <p> </p> <p>            It was apparent that at all times the plaintiff (the respondent herein) was legally represented, however no heads of argument were filed in terms of r 238 (2a) of the High Court Rules in respect of the exception. On the date of hearing of this matter the respondent’s legal practitioner requested for a postponement to file the heads of argument on the basis that the respondent had at one point indicated that at the hearing of the exception he did not require representation. However he later changed his mind and indicated his desire for representation. This is the reason why the heads of argument were not filed. Both the excipient and the first defendant opposed the application. I dismissed the application for the simple reason that there was no renunciation of agency filed of record as proof that the respondent was no longer represented at any stage in the matter. In the absence of such <em>prima facie </em>evidence the respondent was represented and heads of argument were supposed to be filed. What is clear is that the respondent’s legal representative failed to file heads of argument in terms of the rules. The respondent was therefore barred.</p> <p>             In terms of r 238 (2b) of the rules the court can proceed and consider the merits of the case even where respondent is barred.</p> <p>             In terms of r 137 (10 (b) of the High Court Rules, 1971 a party can except to pleadings. An exception is meant to curtail  unnecessary litigation where no cause of action is disclosed on the pleadings. I was referred by the excipient to the case of <em>City of Harare </em>v<em> D and P Investments (Pvt) Ltd and Another </em>1992 (2) ZLR 254 at D – E where the court had this to say on the purpose of an exception;</p> <p>            “An exception is an answer to the plaintiff’s claim or to the defence claimed. Its main purpose is     to obtain a speedy decision upon a point of law apparent on the face of the pleading attacked and        to settle the dispute in the most economical manner by having the faulty pleading set aside.”</p> <p> </p> <p>            In this case the summons and the declaration only indicate that the property was transferred to the excipient. That averment standing on its own only does not found liability. There is no allegation that she fraudulently caused the transfer of the said property nor is there an allegation that despite the knowledge that the property had been sold to the plaintiff the excipient nevertheless proceeded to purchase the property and take transfer. Negligence is the failure to exercise that degree of care expected in any given circumstances R G McKerron <em>The Law of Delict, </em>7 ed pp 25-26. It involves a duty of care and a breach of that duty. To found a cause of action there must have been a duty of care owed to the plaintiff that the excipient ought to reasonably have guarded against. There is nothing to show that the excipient had such a duty of care. From the pleadings there is no causal link between the plaintiff and the excipient, no relationship at all is established. Nothing was pleaded to found a cause of action against the excipient, on the face of the pleadings there is no case that she has to answer to.</p> <p>            What constitutes a cause of action has been aptly set out in a number of cases and the court was referred to the cases of <em>Dube </em>v <em>Banana </em>1998 (2) ZLR 92 H at 95 and <em>Muhahlera </em>v <em>Clerk of Parliament and Others </em>HH 107/07. A cause of action is a combination of facts that are material for the plaintiff to prove in order to succeed in his action. In the <em>Muhahlera </em>case <em>supra </em>the court defined a cause of action as</p> <p>“…the entire set of facts which gives rise to an enforceable claim and includes every act which is             material to be proved to entitle a plaintiff to succeed in his claim.”</p> <p> </p> <p>            On a proper application of what constitutes a cause of action in relation to this case clearly nothing has been set out by the plaintiff. If the plaintiff intended to rely on fraud or negligence this remained in the air, for no particulars were set out to ground the claim.</p> <p>            The exception is well taken. Accordingly the following order is made.</p> <ol> <li>The exception be and is hereby upheld.</li> <li>The plaintiff’s claim against the second defendant be and is hereby dismissed with costs.</li> </ol> <p><em>Nyamupfukudza and Partners</em>, plaintiff’s legal practitioners</p> <p><em>Kantor &amp; Immerman</em>, 1st defendant’s legal practitioners</p> <p><em>Scanlen &amp; Holderness</em>, 2nd defendant’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/487/2018-zwhhc-487.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21558">2018-zwhhc-487.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/487/2018-zwhhc-487.pdf" type="application/pdf; length=295549">2018-zwhhc-487.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cause-action">cause of action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/exception-practice-and-procedure">Exception (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-filed-exception">when may be filed (Exception)</a></li></ul></span> Mon, 01 Oct 2018 08:19:49 +0000 admin 9107 at https://old.zimlii.org Chikwavaira v Mutonhora & 2 Others (HH 277-18, HC 1950/17) [2018] ZWHHC 277 (24 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/277 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>MUNYUKI ROBERT ARMITAGE CHIKWAVIRA</p> <p>versus</p> <p>JANE MARY RUDO MUTONHORA</p> <p>and</p> <p>GEORGE MUSAFARE MUTONHORA</p> <p>and</p> <p>THE REGISTRAR OF DEEDS N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 1 March 2018 &amp; 24 May 2018</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>C. M Jakachira</em>, for the applicant</p> <p><em>N Bvekwa</em>, for the 1st &amp; 2nd respondents</p> <p> </p> <p> </p> <p>            MANGOTA J: On 23 June 2014 the applicant sued the second respondent and one James Sijabuliso Sibanda under case number HH 224/16. The suit was concluded in the applicant’s favour on 30 March 2016. The court ordered the second respondent and James Sijabuliso Sibanda to pay to the applicant, jointly and severally the one paying the other to be absolved, $176 997.60, interest<em> a tempora morae</em> and costs of suit.</p> <p>            On 17 October 2016 and under case number HC 6516/09, the court ordered the second respondent and James Sijabuliso Sibanda to pay to the applicant’s company, Brightland Farming (Pvt) Ltd, jointly and severally the one paying the other to be absolved, $247 142.21, accrued interest of $33 003.88 as at 30 November 2009, interest of 5% <em>per </em>annum from 1 December 2009 to the date of final payment and costs of suit.</p> <p>           </p> <p> </p> <p>Brightland Farming (Pvt) Ltd, it is evident, had a business relationship with the second respondent and James Sijabuliso Sibanda prior to the dates of the court orders.</p> <p>            Whilst the proceedings which took place under HH 224/16 and HC 6516/09 were in progress, the second respondent donated his movable and immovable goods to the first respondent who is his wife. Amongst what he so donated to her is a piece land which is called stand 186 Mandara Township of Lot 3A Mandara which measures 4052 square metres [“the property”]. He, on 15 September 2011, transferred title in the property to the first respondent. It is now registered in the first respondent’s name who holds it under deed of transfer number 2826/11. It is noted that, prior to the donation and transfer of the property to the first respondent, the second respondent had registered a notarial deed of servitude of usufruct on the property in favour of his wife. He did so 15 February 2005.</p> <p>            The abovementioned conduct of the first and second respondents riled the applicant. He contended that the donation and the subsequent transfer of title in the property were a fraud. He averred that the aim of the donation was to protect the second respondent’s estate against claims of his creditors’ one of whom was the applicant himself. He submitted that the first respondent’s acquisition of the property was executed with the primary objective of defeating the execution of any judgment which he might obtain against the second respondent. He moved the court to declare that:</p> <ul> <li>the transfer of the property by the second, to the first, respondent is null and void <em>ab initio </em>and of no force or effect – and</li> <li>the property in question be specially executable in the estate of the second respondent.</li> </ul> <p>He also moved the court to cancel the notarial deed of servitude of usufruct, MA 62/2005, which had been registered over the property.</p> <p>            The first and second respondents opposed the application. The third did not. The assumption was that he elected to abide by the decision of the court.</p> <p>            The first respondent denied that he intended to frustrate the execution of any judgment that might be obtained against him when he donated the property to his wife. He insisted that he was not a fraudster as the applicant alleged. He averred that he donated and transferred the</p> <p> </p> <p> </p> <p>property to his wife out of his love for her. The transfer, he said, was in good faith. He submitted that the donation was genuine. He moved the court to dismiss the application with costs.</p> <p>            The first respondent supported the averments of her husband. She stated that she was the owner of the property. She also moved the court to dismiss the application with costs.</p> <p>            Two preliminary matters characterize this application. The applicant raised them. The first relates to the bar which he said operated against the respondents. He stated in para (a) of his answering affidavit as follows:</p> <p>“(a)      The notices of opposition were filed one day late and this honourable court’s r 229 has not been followed. As such, the respondents are barred.”</p> <p> </p> <p>            Because the issue of the bar was raised at the answering affidavit stage, the respondents saw no option  which was open to them other than to deal with the same in their heads. They made every effort to, as it were, give evidence from the bar. The impropriety of what they did when they attempted to explain the position of the matter in their heads remains inexcusable.</p> <p>            Heads of argument are not prepared by a party to proceedings. They are prepared, and presented to the court, by a legal practitioner who is representing a party.  Reference is made in this regard to r 238 (1) and (2) of the High Court Rules, 1971. It reads:</p> <p>            “238    HEADS OF ARGUMENT</p> <ol> <li>If, at the hearing of an application, exception or application to strike out, the applicant or excipient, as the case may be, is to be represented by a legal practitioner–</li> </ol> <ul> <li>before the matter is set down for hearing, the legal practitioner shall file with the registrar heads of argument, clearly outlining the submissions he intends to rely on</li> </ul> <p>and setting out authorities, if any, which he intends to cite; and…</p> <ul> <li> </li> </ul> <p>(1a) ….</p> <ol> <li>Where an application, exception or application to strike out has been set down for hearing in terms of subrule (2) of r 223 and any respondent is to be represented at the hearing by a legal practitioner, the legal practitioner shall file with the registrar, in accordance with subrule (2a), heads of argument clearly outlining the submissions relied upon by him and setting out the authorities, if any, which he intends to cite…” (emphasis added).</li> </ol> <p> </p> <p>It is evident, from the foregoing, that heads of argument are not the business of the</p> <p>parties. They are the business of the legal practitioners who represent such parties. Where the legal practitioners give evidence in the heads and in furthermore of their client’s case, therefore, the court will not only frown upon such conduct. It will also disregard evidence which is introduced into the record through the back door.</p> <p>           </p> <p>The respondents’ legal practitioners are guilty of the observed impropriety. What they stated as having been the statement of the respondents on the matter cannot be accepted. It is not their clients’ evidence. It is, therefore, expunged from the record.</p> <p>            It follows, from the foregoing that, if the applicant was correct in what he alleged, he would most certainly have carried the day. The applicant did not make the certificate of service of the application on the respondents part of the record. He alleged and left the matter at that. His allegation, therefore, remains unsubstantiated. He, at any rate, did not pursue the issue of the alleged bar during the hearing of the application. His reasons for refraining from pursuing the same remain unknown. The result was that the issue of the alleged bar was allowed to die a natural death.</p> <p>            The applicant’s second <em>in limine</em> matter relates to the servitude of usufruct which the second respondent registered on the property in favour of his wife. He moved the court to have that servitude cancelled. Reference is made in this regard to para (3) of his draft order.</p> <p>            It is pertinent to mention that para (3) of the draft order is no longer necessary. It is superfluous. Once it is accepted, as it should, that the second respondent transferred title in the property from him to his wife, cancellation of the notarial deed of servitude of usufruct no longer serves any purpose. That is so because the first respondent no longer has limited rights in the property. She has real rights in the same. She holds such to the exclusion of the whole world.</p> <p>            On the merits, I must confess that I read the application over and over again and I failed to define the applicant’s cause of action. He said the second respondent was a fraudster. That connotes that the second respondent defrauded him.</p> <p>The application, as it stands, does not show any fraud-civil or criminal – having been perpetrated against the applicant by the second respondent. In fraud, the fraudster makes a misrepresentation which he intends his victim to act upon to the latter’s actual, or potential, prejudice. (See Innocent Maja<em> The Law of Contract in Zimbabwe,</em> p 98; Jonathan Burchell, <em>Principles of Criminal Law, </em>5 ed p 742)</p> <p>            The application does not show that the second respondent made any misrepresentation at all to the applicant. Misrepresentation is an essential element for the delict of fraud. Its absence in the conduct of the second respondent towards the applicant establishes the fact that the former is not a fraudster as the latter would have the court believe.</p> <p>           </p> <p>In the last sentence of para 8 of his founding affidavit, the applicant state as follows:</p> <p>“I am legally advised that 1st Respondent’s conduct is akin to what is known as, ‘throwing away the shield,’ in our criminal law”. That is my cause of action.”</p> <p> </p> <p>He did not explain the meaning and import of the phrase <em>throwing away the shield</em>. He simply made mention of it and left the matter at that. He says the phrase exists in the country’s criminal law. The suit was a civil matter. It was not under the criminal law branch of the country’s laws. He avers that the phrase constitutes his cause of action. He does not explain how the phrase translates into his cause of action. Nor does he explain what his cause of action really is. <em>A fortiori </em>when he alleges that his cause of action was against the first, and not the second, respondent.</p> <p>            I reiterate that no cause of action arises from a meaningless statement. What the applicant stated in the abovementioned paragraph of his affidavit was totally devoid of meaning. Nothing could be founded upon it. He did not explain what the first respondent did which he said was akin to what is known as “<em>throwing away the shield in our criminal law</em>.” He, in short, did not state his statement of claim in a clear and concise manner.  He remained vague and completely embarrassing, so to speak.</p> <p>            The applicant stated in the last sentence of paragraph (10) of his affidavit as follows:</p> <p>“… it is my contention that 1st Respondent acquired the property in a transaction which was executed with the primary objective of defeating the execution of any judgment which I might obtain against 2nd Respondent.”</p> <p>           </p> <p>            The tone of the above statement places his case into the criminal law topic of defeating or obstructing the course of justice. Jonathan Burchille’s <em>Principles of Criminal Law </em>5 ed states, at p 851 that the crime of defeating of obstructing the course of justice consists in:</p> <p>“unlawfully doing an act which is intended to defeat or obstruct the due administration of justice.”</p> <p> </p> <p>           What the respondents did was not unlawful. No law prohibited them from making a donation to each other. If what they did was a crime, the applicant would have reported them to the police so that the law is allowed to take its course. The fact that he did not press charges against them supports the view which I hold of this matter. The learned author states at p 862 of his legal text book that:</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>“The judicial administration of justice is completed upon the pronouncement by a court of its judgment and anything which delays or obstructs  the execution of judgment is not proper subject matter for a criminal charge of defeating or obstructing the course of justice.” (emphasis added)</p> <p> </p> <p>            Applying the principle which was laid down in the above underlined words, it is not an offence for the respondents to have acted as they did. Whilst they delayed or obstructed the execution of the applicant’s judgment against the second respondent, they do not in any way, qualify to be charged under the offence of defeating or obstructing the course of justice. Nor can they be properly sued for the same. <em>A fortiori</em> when the donation which they made to each other pre-existed the applicant’s judgment under HH 224/16 or the applicant’s company’s judgment under HC 6516/09.</p> <p>            The tone of application shows that the applicant is not challenging the validity of the donation. He, indeed, cannot challenge that in the face of Annexure K and L which the first and the second respondents executed on 8 August 2008. The donation is valid and so is the transfer of the property into the name of the first, by the second, respondent.</p> <p>            What the applicant appears to challenge is the motive of the donation. He is, in effect, challenging the intention of the respondents. He is saying the second respondent engaged in a fraudulent act when he donated the property to his wife and later, passed title in the same to her.</p> <p>            I reiterate that the conduct of the respondents does not fall into the realms of the delict of fraud. Further, the unchallenged statement of the second respondent is that there was no litigation against him when he donated the property to his wife. What he stated is the unvanished truth. The property was not encumbered at all when the donation took place. The only encumbrance which then existed was the servitude of usufruct which he registered in favour of his wife in 2005. That encumbrance did not operate in favour of the applicant. It operated in favour of the first respondent.</p> <p>            The applicant had every right to protect his interest in the property. He must have realised that the second respondent was moving to outwit him when the servitude of usufruct was registered. He could easily have registered a caveat against the property as a way of securing his interests in the same. He did not do so. He advanced no reason at all for his inaction.</p> <p> </p> <p> </p> <p> </p> <p>He has no one else to blame but himself. The <em>dictum</em> which SANDURA JA laid down in <em>Beitbridge Rural District Council </em>v <em>Russell Construction Co. </em>1998 (2) ZLR 190 (S) 193 G remains appropriate to his situation. It reads:</p> <p>            “the law will help the vigilant and not the sluggard.”</p> <p>            The applicant was not vigilant. He was sluggard in the manner that he dealt with his case. His explanation for not placing a caveat on the property leaves a lot to be desired.</p> <p>            The conduct of the applicant is akin to that of a stable keeper who closes the stable when the horses have already bolted. It is an effort in vain. It is not rewarding at all.</p> <p>            The law allows couples to donate properties to each other. There is nothing wrong with that. This is what the respondents did. They violated no law at all.</p> <p>            The applicant’s stated cause of action was all sorts of things. He alleged fraud and he failed to prove it. He alleged some meaningless phrase. He failed to elaborate what he intended to convey by it. He alleged that the respondents defeated the course of justice. He did not say how they defeated or obstructed the course of justice. <em>A fortiori </em>when all what they did – servitude of usufruct, donation and transfer of property – preceded the judgments which his company and him obtained against the second respondent.</p> <p>The second respondent cannot be held liable for having outwitted him. He moved faster than the applicant was able to do. It was, therefore, for the mentioned reason that the applicant gropped for words which he hoped would constitute his cause of action. He, unfortunately for himself, stated none.</p> <p>            The applicant failed to prove his case on a balance of probabilities. His application cannot stand. It is, accordingly, dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p><em>Jakachira &amp; Company, </em>applicant’s legal practitioners</p> <p><em>Messrs Bvekwa Legal Practice, </em>1st &amp; 2nd respondents’ legal practitioners   </p> <p> </p> <p>           </p> <p>           </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/277/2018-zwhhc-277.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26283">2018-zwhhc-277.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/277/2018-zwhhc-277.pdf" type="application/pdf; length=143279">2018-zwhhc-277.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/donation">DONATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/husband-and-wife-donation">Husband and wife (DONATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/donation-between-spouses">donation between spouses</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/donation-one-spouse-another-when-proper">donation from one spouse to another (when proper)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cause-action">cause of action</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-%E2%80%93-application">dismissal of – application for</a></li></ul></span> Mon, 18 Jun 2018 13:18:33 +0000 admin 8918 at https://old.zimlii.org Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Private) Limited (SC 24/18, Civil Appeal No. SC 455/16) [2018] ZWSC 24 (14 May 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/24 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p><strong>REPORTABLE</strong><strong>        (18)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>MEDLOG    ZIMBABWE     (PRIVATE)    LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>COST     BENEFIT     HOLDINGS     (PRIVATE)     LIMITED</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; GUVAVA JA</strong></p> <p><strong>HARARE: JULY 25, 2017 &amp; 14 MAY, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>E.T. Matinenga</em>, for the appellant</p> <p><em>J.B. Wood</em>, for the respondent</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>GARWE JA</strong></p> <p>[1]        The respondent issued summons out of the High Court seeking an order for the release of its plastic bags which were being retained by the appellant, payment of the sum of US$157 350.05 representing the business it lost as a result of such retention and costs of suit on the scale of legal practitioner and client.  The respondent also sought payment of interest from the date of issue of summons to the date of payment in full.</p> <p> </p> <p>[2]        After hearing evidence and submissions from the parties, the court <em>a quo</em> ordered the appellant to pay the sum of $157 350.05 to the respondent being damages for loss of business, interest on that sum at the prescribed rate and costs of suit on the ordinary scale.  The present appeal is against that order.</p> <p> </p> <p><em>FACTUAL BACKGROUND</em></p> <p>[3]        The appellant is a company registered in accordance with the laws of Zimbabwe and carries on business from premises in Avondale, Harare.  It is an agent of the Mediterranean Shipping Company (“Mediterranean Shipping”), a company that operates worldwide with its core business being the carriage of containers. As agent, appellant’s responsibility is to fulfil the obligations of Mediterranean Shipping by facilitating delivery of containerised cargo to the clients of Mediterranean Shipping in Zimbabwe.     </p> <p> </p> <p>[4]        In this particular instance, at the behest of Mediterranean Shipping, the appellant supervised the movement by road of the plastic bags, which were in a container, from the Port of Beira to Mutare Dry Port.  In Mutare, the appellant instructed the employees of the Port not to release the goods until certain monies were paid by the respondent.  It is common cause that initially the appellant refused to release the container until a sum of money owed by the wife of one of the directors of the respondent had been paid.  Upon realising that the debt had nothing to do with the respondent, the appellant then demanded payment of the sum of $80.50 in respect of handling charges.  The respondent, believing the bags had been unlawfully retained by the appellant, instituted proceedings in October 2012 for the release of the bags, damages for loss of business and interest thereon at the prescribed rate.  The sum of $80.50 was only paid in August 2013 after which the plastic bags were then retrieved.</p> <p> </p> <p> </p> <p> </p> <p><em>PROCEEDINGS A QUO</em></p> <p>[5]        In its declaration, the respondent alleged that it had imported a container of plastic bags from Hong Kong and that it had engaged the appellant as its agent to facilitate the importation and clearing of the goods with the Zimbabwe Revenue Authority(“ZIMRA”). It alleged that, notwithstanding the fact that it had paid the import duty and appellant’s clearing fees, the appellant had refused to release the container on the basis that it was owed money from a previous transaction by the wife of one of the respondent’s directors.  It alleged that consequent upon the refusal by the appellant to release the container, a client who had placed an order with it for plastic bags had cancelled the order as a result of which the respondent had suffered damages in the amount claimed.</p> <p> </p> <p>[6]        In its plea, the appellant, as defendant, denied that it had entered into a contract of agency with the respondent.  It alleged that it had been contracted by the shipper (a term used in the freight business to denote the person who prepares the necessary documentation for the carriage of goods), Hong Kong Richer Int’l Group Limited (”Richer International”), to transport the cartons of plastic bags <em>CIF</em> Mutare.  It alleged that it duly discharged its obligations to deliver the container to Mutare Dry Port after which the respondent became liable to pay its administration fee relating to the Bill of Lading and the container in the sum of $80.50.  The appellant accepted that it refused to release the container before payment of the administration fee in the sum of $80.50 had been made.</p> <p> </p> <p>[7]        At a pre-trial conference before a judge in chambers, the parties agreed the issues to be determined at the trial.  The issues included, <em>inter alia</em>, whether a contract existed between the parties, and, if so, the terms thereof.  Further, whether the appellant was entitled to refuse to release the container until payment of the handling fee of $80.50 had been made and, if not, whether the respondent had suffered damages in the amount claimed in the summons.</p> <p> </p> <p>[8]        During <em>viva voce</em> evidence the respondent, represented by its managing director, Albert Kuwaza, stated as follows.  His company ordered the plastic bags from China and, through the supplier, engaged the appellant at its offices in China to transport the merchandise from China to Mutare, Zimbabwe.  Once the goods were in Mutare the appellant then demanded payment of the sum of $1750 which it alleged was owed by a Mrs Kuwaza, wife of one of the respondent’s directors, in respect of a previous transaction.  The issue of the handling fee of $80.50 was raised by the appellant for the first time in October 2012, way after a client who had placed an order for the bags had cancelled the purchase.</p> <p> </p> <p>[9]        Under cross-examination, he conceded that, in fact, the company with which he contracted in China was Richer International and that Richer International in turn contracted with Mediterranean Shipping to transport the goods to Mutare.  He further conceded that the clearing fees were paid directly to Green Motor Services, the company that was operating Mutare Dry Port and not to the appellant.  He told the court, further, that as far as he was concerned, the appellant, Mediterranean Shipping and Green Motor Services were part of the same company.</p> <p> </p> <p>[10]      Following the dismissal of an application for absolution at the close of the plaintiff’s case, the appellant’s managing director, Dr Giorgio Spambinato, gave evidence before the court <em>a quo</em>.  His evidence was as follows.  The appellant, which operates from offices situate at 27 Natal Road, Belgravia, Harare is an agent of Mediterranean Shipping. It has no offices outside Zimbabwe. The appellant’s role was to assist Mediterranean Shipping to execute its contractual obligation of moving cargo into and out of Zimbabwe.  In this case the appellant only supervised the movement by road of the container from the Port of Beira to Mutare.  It was not involved in the clearance of the goods with ZIMRA.  He confirmed that initially the appellant had insisted on payment of the sum of $1750 owed by a Mrs Kuwaza in respect of a previous transaction but, on realising the error, had personally instructed that the container be released on payment of the sum of $80.50. That sum represented the handling fee for facilitating the necessary documentation and supervising the speedy execution of delivery by sub-contractors and service providers.  He explained that in Zimbabwe it is customary for the agent handling the cargo on behalf of Mediterranean Shipping to recover the costs directly from the recipients of the cargo.  In other countries the handling fee is paid by Mediterranean Shipping.  Whatever role the appellant played in this case was in fulfilment of its agency agreement with Mediterranean Shipping.</p> <p> </p> <p>[11]      In its closing address <em>a quo</em>, the respondent submitted that the question whether there was a contract was “of no real consequence” and that “there needn’t have been a contract between them because the scenario can be resolved by the principles of <em>depositum …</em>” Further that, as depositary, the appellant had an obligation to return the goods to the respondent upon demand.  The respondent further submitted that it was clear from the summons and declaration that the claim “was vindicatory in nature, not contractual.”  Accordingly, respondent prayed for its claim for damages and interest thereon to be granted on the basis of <em>depositum</em>.</p> <p> </p> <p>[12]      In its address <em>a quo</em> the appellant submitted that, on the evidence led before the court, no contract had been proven.  The person with whom the respondent had communicated in China was not the appellant but an employee of Mediterranean Shipping.  More critically, the terms of the alleged contract between the respondent and the appellant had not been established.  Moreover, at no stage had the respondent deposited the goods with the appellant.</p> <p> </p> <p>[13]      In its judgment the court <em>a quo</em> found that Mr Kuwaza, the managing director of the respondent had been unclear as to the nature of the relationship between the appellant, Mediterranean Shipping, Richer International and the respondent.  The court remarked as follows at page 10 of its judgment:-</p> <p>“What is apparent from Mr Kuwaza’s evidence is that he did not produce any documents to show the existence of a contract between the plaintiff and the defendant.  From the evidence that is before me it is clear that the plaintiff entered into a shipping agreement with Mediterranean Shipping Company in Hong Kong, China in April 2012 for the shipment of its plastic container from China to Zimbabwe.  That contract did not involve the defendant.”</p> <p> </p> <p>[14]     However at pages 10-11 of the cyclostyled judgments the court <em>a quo</em> stated:-</p> <p>“I am of the considered view that the circumstances of this case show that there was a contract between the plaintiff and the defendant.  Although the defendant said that it was acting as an agent of Mediterranean Shipping Company its conduct towards the plaintiff shows that it also contracted with the plaintiff separately.  It is not disputed that the defendant facilitated the importation of the plaintiff’s cargo from the Port of Beira to Mutare.  Thereafter it demanded payment from the plaintiff for the service that it had rendered.  The parties did not enter into this contract verbally or in writing but they did so by their conduct.  By demanding payment from the plaintiff for the costs it incurred in facilitating the importation of the plaintiff’s cargo the defendant created a contract between itself and the plaintiff.  It made it a condition of the contract that if the administration fee was not paid, the plaintiff’s cargo was not going to be released.  If there was no contract between the plaintiff and the defendant, the defendant should have simply demanded payment of its fees from Mediterranean Shipping Company which it alleges to be its principal.  At law an agent’s duty is to perform his mandate on behalf of his principal and he accounts to his principal.  The agent’s remuneration is paid by the principal and not by a third party.  I therefore take it that the moment an agent starts demanding payment from the third party and not from his principal then it means that he is no longer acting in terms of the contract between himself and his principal, but he would have created his own contract with the third party.  That contract he would have created with the third party is separate from his contract with his principal.  In <em>casu</em> this is what the defendant did.  It created its own contract with the plaintiff, which contract was separate from the one it had with Mediterranean Shipping Company.”</p> <p> </p> <p>[15]      At page 12 of its judgment, the court, without commenting on the submission by the respondent that it now relied on a contract of <em>depositum</em>, concluded by stating:-</p> <p>“If there was no contract between the 2 companies then the defendant should and would have demanded its fee from Mediterranean Shipping Company which is its principal.  If there was on (<em>sic</em>) contract the defendant had no business demanding that money from the plaintiff.  It also had no business withholding or refusing to release the plaintiff’s container on the basis that the handling fee had not been paid.  All the defendant’s payments would have been due from Mediterranean Shipping Company.  The plaintiff managed to prove that there was contract between itself and the defendant.”</p> <p> </p> <p> </p> <p>[16]     Based on the above findings, the court concluded that the appellant had wrongfully refused to release the container and that the respondent had proved its contractual damages.  It consequently made the order which is the subject of this appeal.</p> <p> </p> <p><em>GROUNDS OF APPEAL</em></p> <p>[17]             In its notice of appeal the appellant raised five grounds.  These are:-</p> <p>1.  The court <em>a quo</em> erred in finding that there was a contract between the appellant and the respondent when the latter was unable to identify the nature of the contract it relied upon and its terms – i.e. whether the contract was one of carriage, <em>depositum</em> or agency.</p> <p>2.  The court <em>a quo</em> erred in finding that there was a contract between the appellant and the respondent despite a contrary indication in the bill of lading and respondent’s lack of knowledge of the terms of the contract it alleged.</p> <p>3.  The court <em>a quo</em> erred in placing the onus of proving the terms of the contractual relationship between appellant and respondent on the former, albeit obliquely.</p> <p>4.  The court <em>a quo</em> erred in finding that-</p> <p>4.1       the contract for the sale of the plastic bags between the respondent and Nedol Investments (Private) Limited was not a sham; and</p> <p>4.2       the loss suffered by respondent, if any, was reasonably foreseen by appellant at the time of the conclusion of the alleged contract and despite the fact that the reasonable foreseeability was not specifically pleaded and proved.</p> <p>5. The court <em>a quo</em> erred in finding that the respondent had mitigated its loss.</p> <p> </p> <p><em>APPELLANT’S SUBMISSIONS BEFORE THIS COURT</em></p> <p>[18]      In its submissions before this Court, the appellant has argued that the respondent did not sufficiently identify the nature of the contract between the parties – in particular-whether it was one of agency or <em>depositum</em>.  The terms of the agreement, be it agency or <em>depositum,</em> remained unknown. It further submitted that the case for the respondent was muddled and that the judgment of the court <em>a quo</em> was equally confusing and confused.  Lastly, it submitted that whilst the facts show some relationship between the parties, the respondent had not proved the nature of the relationship that existed between them.</p> <p> </p> <p><em>RESPONDENT’S SUBMISSIONS BEFORE THIS COURT</em></p> <p>[19]      In its heads of argument, the respondent has submitted as follows. Its declaration in the court <em>a quo</em> made it clear that what it sought was the release of its goods arising from their unlawful detention.  Further, that even if there was no contract of agency between the parties, the respondent “was not without a remedy” and that there was a tacit contract of <em>depositum</em> between the parties. </p> <p> </p> <p>[20]      In paragraph 3 of its heads of argument, it has further stated:</p> <p>“The respondent had contended that the claim was of a vindicatory nature and that any contract between the parties was one of <em>depositum</em> …. As the appellant states, the court did not deal with these issues.  It is here noted that by the time the matter came before the court, the goods had been released and if the claim had originally been vindicatory in nature, it no longer was, which was probably the reason why the court <em>a quo</em> <em>allowed itself to be misled by the appellant to believe that the claim fell to be decided in contract.”</em> (my emphasis)</p> <p> </p> <p>[21]      At paragraph 10 of its heads of argument, the respondent has also stated:-</p> <p>“The absence of a contract, however, would not have left the respondent without a remedy because he would have a claim in delict for any loss incurred as a result of the unlawful possession of his property ….”</p> <p> </p> <p> </p> <p>[22]      Finally, at paragraphs 13 and 14 of its heads, the respondent has further argued:-</p> <p>“13.     Thus, as the respondent’s counsel contended at p 239, the issue whether there was a contract between the parties was really of no consequence and the appeal cannot succeed on the basis that no such contract was brought into being.</p> <p>14.       The court <em>a quo</em> found in effect that there was a tacit contract between the parties based on the fact that the appellant raised charges mentioned above against the respondent.”</p> <p> </p> <p> </p> <p><em>RESPONDENT’S SHIFTING CAUSE OF ACTION</em></p> <p>[23]      It is clear from the foregoing that the respondent, as plaintiff, changed its cause of action as the trial progressed.  In the declaration, the claim clearly arises from a contract of agency.  When the respondent realised that the evidence did not establish such agency, an aspect I deal with shortly, it then claimed, without amending its pleadings, relief on the basis of the <em>rei vindicatio </em>and a contract of <em>depositum</em>.  In its submissions before this Court, the respondent says, whatever the correct position might be on whether or not it had a contract with the appellant, it cannot be without a remedy.  The suggestion was made that it even had a claim arising out of delict.</p> <p> </p> <p>[24]      I am inclined to agree with learned counsel for the appellant that the cause of action <em>a quo</em> was most confusing.  The cause of action based on a contract of agency was abandoned in favour of the <em>rei vindicatio </em>and <em>depositum,</em> which had not been pleaded. No evidence was led on the terms of such contract. To add to the confusion, before this Court, the possibility of the claim arising out of delict has also been thrown in.  The manner in which the respondent handled its cause of action in the court <em>a quo</em> and before this Court is most unsatisfactory and not permissible.  Implicit in the submissions by the respondent in support of the judgment of the court <em>a quo</em> is that pleadings serve no purpose.</p> <p> </p> <p><em>THE IMPORTANT PURPOSE OF PLEADINGS</em></p> <p>[25]      The manner in which the respondent has handled its case both <em>a quo</em> and in this Court brings to the fore the question as to what the purpose of pleadings is.  In general the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.  Various decisions of the courts in this country and elsewhere have stressed this important principle.</p> <p>25.1     In <em>Durbach v Fairway Hotel, Ltd</em> 1949 (3) SA 1081 (SR) the court remarked:-</p> <p>“The whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed.”</p> <p> </p> <p>25.2     Harwood BA in his text <em>Odgers’ Principles of Pleading &amp; Practice in Civil Actions in the High Court of Justice</em> (16th edn, Stevens &amp; Sons Ltd, London, 1957) states at page 72:-</p> <p>            “The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus arrive at certain clear issues on which both parties desire a judicial decision.”</p> <p> </p> <p>25.3     In <em>Kali v Incorporated General Insurance Ltd</em> 1976 (2) SA 179 (D) at 182, the court remarked:</p> <p>            “The purpose of pleading is to clarify the issues between the parties and a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.”</p> <p> </p> <p>25.4     In <em>Courtney–Clarke v Bassingthwaighte</em> 1991 (1) SA 684 (Nm), the court remarked at page 698:-</p> <p>            “In any case there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively there is no authority for ignoring the pleadings … and giving judgment in favour of a plaintiff on a cause of action never pleaded.  In such a case the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.”</p> <p> </p> <p>25.5     In <em>Imprefed (Pty) Ltd v National Transport Commission</em> 1993 (3) SA 94(A), 108, the court cited with approval the case of <em>Robinson v Randfontein Estates GM Co. Ltd</em> 1925 AD 173 where at page 198 it was stated as follows:-</p> <p>            “The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry.  But within those limits the court has a wide discretion.  For pleadings are made for the court, not the court for pleadings.  And where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”</p> <p> </p> <p>25.6     In <em>Jowell v Bramwell-Jones</em> 1998 (1) SA 836 at 898 the court cited with approval the following remarks by the authors Jacob and Goldrein in their text <em>Pleadings: Principles and Practice </em>at p 8-9:</p> <p>            “As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings … For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.  Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.  The court itself is as much bound by the pleadings of the parties as they are themselves.  It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.  Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.  To do so would be to enter the realm of speculation.  … Moreover, in such event, the parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party is equivalent to not hearing him at all and may thus be a denial of justice.  The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings.  In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither <em>party can complain if the agenda is strictly adhered to.</em>”  (my emphasis)</p> <p> </p> <p>25.7     The authors Cilliers AC, Loots C and Nel HC in their text <em>Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa</em> (5th edn, Juta and Co. Ltd, Cape Town 2009) quote the following passage from Halsbury’s <em>Laws of England, </em>4th edn (Reissue), Vol 36 para 1 in which the function of pleadings is said to be,</p> <p>            “… to give a fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties.  It follows that the pleadings enable the parties to decide in advance of the trial what evidence will be needed.  From the pleadings the appropriate method of trial can be determined.  They also form a record which will be available if issues are sought to be litigated again.  The matters in issue are determined by the state of pleadings at the close if they are not subsequently amended.” (at page 558)</p> <p> </p> <p>25.8     In <em>Farrell v Secretary of State for Defence</em> (1980) 1 All ER 166 at page 173, Lord Edmund-Davies stated as follows,</p> <p>            “It has become fashionable these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and indeed, may on occasion have led to its being defeated.  But pleadings continue to play an essential part in civil actions, and although there has been … a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trial with a jury.  To shrug off criticism as ‘a mere pleading point’ is therefore bad law and bad practice.  For the primary purpose of pleadings remains, and it can still prove of vital importance.  That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.”</p> <p> </p> <p>25.9     In a paper: <em>A Judge’s View Point</em>, the <em>Role of Pleadings</em> presented by Justices Rares of the Federal Court of Australia and Richard White of the Supreme Court of New South Wales at a judge’s symposium, the learned judges remarked:</p> <p>“Precise formulation of the applicant’s rights in the initiating document is of central importance.  This is because the pleading is the source from which many other consequences flow in the life of the litigation from filing at first instance through to final resolution in the High Court.  The pleading will be used as the reference point for the seeking of particulars, the administering of interrogatories (which is virtually extinct), the obtaining of an order for discovery if the court is satisfied this is required, the issue of subpoenas, the calling of evidence, the relevance and admissibility of evidence, the closing arguments, the reasons for judgments and the availability of arguments on appeal.  At all of these points, the following questions arise: “Was this issue pleaded?” and “How was this issue pleaded?”  The question is not the loose one whether the argument could possibly be raised on the evidence at the conclusion of a hearing but whether the issue has been pleaded …”</p> <p> </p> <p>[26]      I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally.  The position is therefore settled that pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants.  It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination.  Therefore a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.</p> <p>  </p> <p><em>REQUISITES FOR PLEADING A CONTRACT</em></p> <p>[27]      In an action based on a contract, the material averments that must usually be made are the existence of the contract, the relevant terms of the contract and the applicability of those terms to the particular right forming the basis <em>ex contractu</em> of the claim – <em>Herbstein &amp; Van Winsen,</em> <em>The Civil Practice of the High Courts of South Africa</em>, op cit, p 569. </p> <p> </p> <p><em>WHETHER THE CONTRACT OF AGENCY WAS PROVED</em></p> <p>[28]      This was the basis of the respondent’s cause of action before the High Court.  The respondent’s managing director did not know the exact relationship between the appellant, Mediterranean Shipping and Richer International of Hong Kong.  From the evidence, it is clear that the appellant was not involved in the transactions that took place in China.  It does not conduct operations outside Zimbabwe. It only got involved, as agent of Mediterranean Shipping, in tracking the container once it landed in Beira and in having it transported to Mutare Dry Port.  It was also clear from the evidence that, as agent of Mediterranean Shipping, the appellant was supposed to receive payment from Mediterranean Shipping for its role in checking the Bill of Lading and ensuring that the cargo was delivered to Mutare Dry Port. The appellant’s managing director explained however that it is the practice in Zimbabwe for the recipient to be billed directly by the appellant.</p> <p> </p> <p>[29]      Clearly, no contract of agency was proved.  The fact that the appellant invoiced the respondent for handling fees does not, on its own, show the existence of a contract.  The exact relationship that existed between the two parties was not established.  In the circumstances, the court <em>a quo</em> should have granted the application for absolution from the instance which was made at the close of the case for the plaintiff.  The court <em>a quo </em>accepted that the respondent had not produced documents to show the existence of a contract.  The court further accepted that the respondent had entered into a shipping agreement with Mediterranean Shipping in Hong Kong and that the appellant was not involved.  The court also accepted that the appellant only got involved in supervising the movement of the container from Beira to Mutare at the behest of Mediterranean Shipping.  The court further found that although the parties had been involved in these transactions over the years, the respondent did not know that the appellant was merely an agent of Mediterranean Shipping.  Having made these findings,that really should have been the end of the matter.  The suggestion that, judging by the conduct of the parties, there must have been some other undefined contract between them, is not borne by the evidence.  In any event, the court did not state what type of contract this may have been and what its terms were.</p> <p> </p> <p>[30]      Of significance is the fact that the respondent itself accepted, in its closing submissions, that its claim was not based on agency but rather on <em>depositum.</em>  Having abandoned its claim based on a contract of agency, it was not for the court <em>a quo</em> to find, as it did, that there was some other undefined contract.  Once the respondent abandoned its pleadings, the court should have granted absolution from the instance.  The attempt by the respondent to rely on the <em>rei vindicatio </em>and <em>depositum</em>, as well as delict, clearly confirms that the respondent had not established any real cause of action against the appellant.</p> <p> </p> <p><em>DEPOSITUM NOT ESTABLISHED IN ANY EVENT</em></p> <p>[31]      Earlier in this judgment, I cited several decided cases in support of the proposition that pleadings serve the important purpose of identifying the issues that require determination by a court and also enabling a defendant to know the case he has to meet before the court.  To this principle however there is a qualification.  In a limited sense, a court can adjudicate on issues not raised on the pleadings even when no amendment has been applied for.</p> <p>31.1     In <em>Collen v Rietfontein Engineering Works </em>1948 (1) SA 413 (A), 433, CENTLIVRES JA, referring to an issue not raised on the pleadings but fully canvassed at the trial, said:</p> <p>”This court, therefore, has before it all the materials on which it is able to form an opinion, and this being the position it would be idle for it not to determine the real issue which emerged during the course of the trial.“</p> <p> </p> <p>31.2     Further in <em>Middleton v Carr</em> 1949 (2) SA 374 (A) at 385, SCHREINER JA, in</p> <p>similar vein, stated:</p> <p>“Where there has been full investigations of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised.”          </p> <p>31.3     In <em>Sager’s Motors (Pvt) Ltd v Patel</em> 1968 (2) RLR 267 (A), Lewis AJA accepted that the above remarks correctly reflected the position in this country.   At page 274 A – B he stated:</p> <p>”The <em>ratio decidendi </em>of the cases … referred to above is that where there has been a full and thorough investigation into all the circumstances of the case and a party has had every facility to place all the facts before the trial court, the court will not decline to adjudicate on an issue thus fully canvassed simply because the pleadings have not explicitly covered it.“</p> <p>31.4     The above remarks were cited with approval by this Court in <em>Guardian Security Services (Pvt) Ltd v ZBC</em> 2002 (1) ZLR  (S), 5 D – H, 6 A-B.  That a court can determine an issue that is fully canvassed but not pleaded is therefore now settled in this jurisdiction.</p> <p>[32]      Implicit in the submissions by the respondent, both <em>a quo </em>and in this court, is the suggestion that, although not pleaded, the existence of a contract of <em>depositum </em>was established on the evidence adduced before the court <em>a quo</em>.</p> <p>[33]      <em>Depositum,</em> as a concept, was, as would be expected, developed by the Romans.  A contract of <em>depositum</em>, or deposit, as we now call it, is “… a contract in which one person (<em>depositor</em>) gives another (<em>depositarius) </em>a thing to keep for him <em>gratis</em>, and to return it on demand … the ownership of the thing is not transferred, but ownership and possession remain with the depositor …. The receiver is not allowed to use it” – Hunter W.A., <em>A Systemic and Historical Exposition of Roman Law in the Order of a Code</em> (2nd Ed) William Maxwell and Son, London 1885.</p> <p>[34]      In <em>B.C. Plant Hire cc t/a BC Carriers v Grenco</em> (SA) (Pty) Ltd (2004) 1 All SA 612 (C), the court held that a contract of <em>depositum</em> comes into existence when one person (the depositor) entrusts a moveable thing to another person (depositary) who undertakes to care for it gratuitously and to return it at the request of the depositor.  The depositary does not benefit from the deposit in any way.  If the depositary uses the thing, then this is considered a <em>furtum usus</em>.  The depository can only be found liable where gross negligence (<em>culpa lata</em>) is established. See also <em>Ncube v Hamadziripi</em> 1996 (2) ZLR 403 (HC); <em>Munhuwa v Mhukahuru Bus Services</em> <em>(Pvt) Ltd</em> 1994 (2) ZLR 382 H; <em>Smith v Minister of Lands and Natural Resources</em> 1979 RLR 421(G); 1980(1) S.A 565 (ZH).</p> <p> </p> <p>[35]      In this case it was never the respondent’s case at any stage that it had given the container to the appellant for safe keeping or that the appellant had agreed to keep the container <em>gratis </em>and to return it on demand.   The appellant does not handle containers <em>ex gratia.  </em>To the contrary, the appellant was demanding payment of the handling fee of $80.50 before the container could be released to the respondent.  In short, the evidence did not establish the existence of a contract of <em>depositum</em>.</p> <p><em>DISPOSITION</em></p> <p>[36]      It is clear, from all the circumstances of this case, that the respondent did not establish any cause of action cognizable at law against the appellant.  It may, but I make no firm finding in this respect, have had a cause of action arising out of delict as suggested by its counsel before this Court.  However this was not the cause of action pleaded before the court <em>a quo </em>or established during the oral hearing.  The possibility of a cause of action arising from delict was, as already noted, raised for the first time in heads of argument filed before this Court.  The fact that the respondent abandoned its claim based on agency and then sought to rely on the <em>rei vindicatio</em> and <em>depositum</em> (without amending its pleadings) and also delict, leaves one in no doubt that the respondent was on a fishing expedition and was not clear, even in its own mind, what its cause of action against the appellant was.  In changing its cause of action at whim, as it did, the respondent breached the whole essence and purpose of pleadings.  It cannot in these circumstances be said to have proved its claim for contractual damages against the appellant.</p> <p> </p> <p>[37]      The appeal must therefore succeed.  Costs are to follow the event.</p> <p> </p> <p>[38]      It is accordingly ordered as follows:-</p> <p>            1.         The appeal succeeds with costs.</p> <p>            2.         The judgment of the court <em>a quo</em> is set aside and in</p> <p>                        its place the following is substituted:</p> <p>            “The plaintiff’s claim be and is hereby dismissed with costs.”</p> <p>                                    <strong>GOWORA JA</strong>                                   I agree</p> <p>                                    <strong>GUVAVA JA</strong>                                    I agree</p> <p><em>Honey &amp; Blackenberg,</em> appellant’s legal practitioners</p> <p><em>Venturas &amp; Samkange,</em> respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/24/2018-zwsc-24.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=44885">2018-zwsc-24.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/24/2018-zwsc-24.pdf" type="application/pdf; length=279675">2018-zwsc-24.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/agency">AGENCY</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/carrier">CARRIER</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/carriage-goods">Carriage of goods</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cause-action">cause of action</a></li></ul></span> Wed, 13 Jun 2018 08:21:47 +0000 admin 8899 at https://old.zimlii.org Nduku & Another v Tingpen & 4 Others (HH 221-18, HC 3268/18) [2018] ZWHHC 221 (26 April 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/221 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>KUDZAI NDUKU</p> <p>and</p> <p>KEVIN GUZAH</p> <p>versus</p> <p>LUO TINGPEN</p> <p>and</p> <p>LI YIZE</p> <p>and</p> <p>GAMUCHIRAI NIGEL ZUZE</p> <p>and</p> <p>JINGLONG SECURITY SERVICES (PVT) LTD</p> <p>and</p> <p>MING CHANG SINO AFRICA (PVT) LTD</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MABHIKWA J</p> <p>HARARE, 17 April 2018 &amp; 26 April 2018</p> <p> </p> <p><strong>Ruling</strong></p> <p>Mrs<em> Ruth Zimvumi, </em>for the 1st &amp; 2nd applicants</p> <p>Ms<em> D Sananga,</em> for the 1st, 2nd, 4th &amp; 5th respondents</p> <p><em>G Nyengedza, </em>for the 3rd respondent</p> <p> </p> <p>MABHIKWA J: The applicants brought this matter before this honourable court as an Urgent Chamber Application.</p> <p><strong>Brief Facts</strong></p> <p>Applicants filed an application termed,</p> <p>“Urgent Chamber Application for an order compelling the respondents to contribute medical expenses <em>pending</em> determination of the damages claim under HC 2589/18.” (emphasis is mine.)</p> <p> </p> <p>The short history of the matter is that on or about 19 February 2018, the applicants were involved in a shooting incident. On 20 March 2018, they issued summons out of this Honourable Court against the 5 respondents. They alleged in their declaration that first to third respondents, “mercilessly shot and assaulted them” on 19 February 2018 thereby causing them serious injuries. The forth and fifth respondents were sued in their various positions as employers of the first, second and third respondents. That matter was filed under case No. HC 2589/18. It is currently at the pleadings stage.</p> <p>On 11 April 2018, applicants then filed this application. As already stated, the wording of their application was ‘an urgent chamber application for an order compelling the respondents to contribute medical expenses pending the determination of the damages claim under HC 2589/18.’ It was also alleged in the application that applicants suffered serious injuries as well as untold physical and mental pain. It was further stated that they had run out of money to cater for the crucial medical expenses required for treatment and that they are therefore in need of financial assistance as the medical bills required a lot of money.</p> <p>Applicants alleged that the respondents do not deny liability and that what needed to be argued was only the quantum of damages. They stated further that if not granted the relief sought, they ran the risk of permanent disability or even death.</p> <p>Out of abundance of caution I decided to immediately set the matter down and directed the parties’ legal representatives to appear before me and make further submissions in terms of Order 32 r 244 of the High Court Rules.</p> <p>I however dismissed the application and the following are my reasons.</p> <p><strong>The Law</strong></p> <p>It is trite law that there is no strict rule of law deciding whether a matter is urgent or not and that in practice, the court, as provided for in the High Court Rules, 1971 will afford relief to those litigants who seek such relief on an urgent basis. Whether to treat the matter as urgent and set it down for hearing or grant the application in chambers or not is a matter which is entirely within the judge’s discretion upon being satisfied on the papers. See GOWERA J (as she then was) in <em>Triple C Pigs and Anor vs Commissioner General</em>, ZLR, 2007 (1) ZLR 27 (H).</p> <p>However, the judge must remain impartial in exercising his discretion.</p> <p>In <em>Kuvarega </em>v <em>Registrar General &amp; Anor</em>, 1998 (1) ZR 188 (H) at 193 F-G this court held that</p> <p>“[…] what constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws is not the type of urgency contemplated by the rules. […]”</p> <p>It was further stated in <em>Kuvarega</em> that the affidavit accompanying the application should state as a matter of fact and not opinion that the applicant will suffer some form of prejudice or irreparable harm if relief is not instantly afforded to him. However, the element of harm should not be confused with urgency.</p> <p>In <em>Document Support Centre (Pvt) Ltd</em> v <em>Mupurore</em> 2006 (2) ZLR 240 (H) MAKARAU J (as she then was) endorsed CHATIKOBO J’s sentiments from <em>Kuvarega</em>. She went on to state that</p> <p>“…. It appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications…... Some actions, by their very nature, demand urgent attention and the law appears to have recognized that position. Thus, actions to protect life and liberty of the individual or where the interests of minor children are at risk demand that the courts drop everything else and in appropriate cases, grant interim relief protecting the affected rights. The rationale of the court acting swiftly where such interests are concerned is in my view clear. Failure to act in these circumstances will result in the loss of life or the liberty of individuals or the infliction of irreversible physical or psychological harm on children.” (emphasis is mine)</p> <p>At the time the parties where called upon to appear in chambers, the respondents had not yet filed any opposing papers. Although with some misgivings, it was the allegation of the possibility of death and the need to protect life that the matter was set down, erring in my discretion on the side of caution. There was, however always the looming question as to why now, after initially filing a summons action after the shooting on 19 February 2018.</p> <p>On the date when the matter had been set down for hearing, which was 17 April 2018 at 0930 hrs, the counsel for the applicant stated that her client, the first applicant, insisted on being present at the proceedings. Upon being informed that first applicant was incapacitated and being transported via stretcher and ambulance, the courts chambers had to be moved to an accessible court in close proximity to an entrance/exit and unencumbered by stairs. The second applicant was not in attendance and no explanation for his absence was given at the time. The respondents, were then represented and produced their opposing papers which they had filed that very same morning. They made further oral submissions. In short, the application was strongly opposed.</p> <p>Respondents averred that the matter in not urgent and in fact raised points <em>in limine</em> notably the fact that the certificate of urgency was fatally defective. The legal practitioner who certified it as urgent stated that he had read and understood the “applicant’s founding affidavit for an urgent chamber application and had applied his mind to both the facts and cause thereof.” Ultimately, in a ten-paged certificate the attorney stated that he was convinced that the matter was indeed urgent However, it was argued by the respondent that the certificate itself was a deliberate misrepresentation to the court. The respondents argued that the certificate of urgency showed that it had been written and or signed on 10 April 2018 while the founding affidavit which the certificate itself relied upon, was only written and or signed on 11 April 2018. How then could the certifying practitioner have laid eyes on and certified as urgent a document which was not yet in existence at the time?</p> <p>Another point <em>in limine</em> which was raised was that the applicants had deliberately concealed certain facts to the court with the intention to mislead it. For instance, while the applicants had stated in their papers that it was common cause that the applicants had indeed been shot by the respondents, this was deliberately false and or misleading on their part as they were aware that this fact was vigorously disputed both under the damages claim in HC 2589/18 and in the criminal proceedings at the Regional Magistrates Court.</p> <p>The respondents argued that at the Regional Magistrate’s Court, they had clearly denied shooting the applicants and that in fact the first respondent was nowhere near the scene of the crime. It was further argued that the regional court trial had actually commenced and the first applicant had testified before that court. In her testimony, she had told the Regional Court that her facial condition as shown in Annexure “A2” was not related in any way to the shooting but rather a condition she had been afflicted with since birth.</p> <p>It was also argued that after first applicant’s testimony, the criminal proceedings had to be postponed several times because of second applicant’s unavailability as he was said to be in China where he is apparently a university student. The last such postponement was allegedly on 12 April 2018 wherein the matter was remanded until 25 April 2018 on account of the second applicant’s unavailability. And yet despite his alleged unavailability the same second applicant was still able to depose to a supporting affidavit the day before (11 April 2018).</p> <p>The applicant’s legal counsel responded to these allegations as typographical errors and omissions and urged the court to disregard them in the interests of justice and in the exercise of its discretion.</p> <p> </p> <p> </p> <p><strong>Analysis</strong></p> <p>Nature of the Cause of Action and Relief Sought</p> <p>A simple look at the application shows that what appears as the heading is not what is contained in the body of the same application. The actual relief sought in the draft order is also not in tandem with that suggested by the heading.</p> <p>In the application, applicants reproduce the same claim which is under HC 2589/18, back it up by affidavits and then seek the same relief they sought in that HC 2589/18. The effect of which is that although dubbed a ‘contribution’ in terms of the heading, or an Interim Order in terms of the draft, the effect of the papers is that they seek a final order for essentially the same sum as that claimed in HC 2589/18.</p> <p>In chambers, the court sought to remind the applicants as much as possible that the issue of liability first is crucial and that clearly before it is determined the relief they seek would be improper. In any case, damages of such a nature and in a contested matter cannot and should not be awarded in chambers without the leading of evidence in an open court. The court reminded the applicants further that clearly, the request shown by the application’s heading is a different one which they probably needed to stick to. The applicant’s legal practitioners stood firm that their instructions were to stand by the papers filed and similarly the relief sought in their draft. For the record, the ‘interim’ relief sought was damages to the tune of seven hundred and seventy-one thousand, eight hundred and ninety-five dollars ($771 895.00).</p> <p>Counsel for the applicants where asked whether or not this was asking the judge in chambers to effectively grant final relief, thus circumventing the entire court process set in motion by HC 2589/18. An improper course of action especially given the fact that the matter was hotly contested and the opportunity for the leading of evidence would not be accorded to the opposing party. They responded by then claiming that the figure of $771 895.00 was a typographical error and implored the judge to consider the first applicant’s plight and exercise his discretion to grant relief. They stuck to the argument that in their opinion, the question of liability is not in issue, they even implored the judge to amend the draft order as he deemed fit and “in the exercise of his discretion” grant relief.</p> <p>It should be noted that the relief sought was clearly not a competent one.</p> <ul> <li>The application for an order compelling the respondents to contribute towards medical expenses, which applicants abandoned anyway, was not supported by corresponding medical evidence, not the general delictual damages claimed in the main action.</li> <li>There was no proof of urgency of the alleged possible danger to life from a medical expert.</li> <li>There was no proof of unavoidable medical expenses necessary to avert the alleged danger to life if so shown.</li> <li>There was no evidence to show current urgent medical attention and the period it would take to avert the danger so alleged.</li> <li>There was no proof of the amount of physiotherapy fees, ambulance fees, wound dressing fees etc.</li> </ul> <p>Ultimately</p> <ol> <li>There was no urgency in reality save to say the applicants wanted the court to consider 1st applicants injuries, sympathise with her and find cause for urgency.</li> <li>The certificate of urgency itself was indeed fatally defective.</li> <li>Applicants’ application continued to be no more than a plea to “jump the que” and determine the whole claim on an urgent basis through a chamber application, before the respondents’ liability or otherwise was also determined in case number HC 2589/18</li> <li>The relief sought was clearly final in nature.</li> </ol> <p>Accordingly,</p> <ol> <li>The matter is not urgent.</li> <li>The matter is removed from the roll of urgent matters</li> <li>Applicants be and are hereby ordered to pay costs of suit.</li> </ol> <p> </p> <p><em>Ruth Zimvumi Legal Practice,</em> applicant’s legal practitioners</p> <p><em>Messrs Hussein Ranchhod &amp; Co</em>, 1st, 2nd, 4th &amp; 5th respondents’ legal practitioners</p> <p><em>Scanlen and Holderness</em>, 3rd respondents’ legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/221/2018-zwhhc-221.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27173">2018-zwhhc-221.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/221/2018-zwhhc-221.pdf" type="application/pdf; length=133249">2018-zwhhc-221.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cause-action">cause of action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cause-action-must-be-set-out-founding-affidavit">cause of action must be set out in founding affidavit</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/chamber-application">chamber application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span> Thu, 24 May 2018 07:03:20 +0000 admin 8863 at https://old.zimlii.org