PRESCRIPTION https://old.zimlii.org/taxonomy/term/11123/all en Triangle (Pvt) Ltd v Mutasa (NO) And 10 Others (SC 77-21, Civil Appeal No. SC 845/18) [2021] ZWSC 77 (24 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/77 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 77/21</p> <p>Civil Appeal No. SC 845/18</p> <p> </p> <p><strong>REPORTABLE</strong><strong>:   (74)</strong></p> <ol> <li><strong>    TRIANGLE    (PRIVATE)     LIMITED</strong></li> </ol> <p><strong>v</strong></p> <ol> <li><strong>    FUNGAI     GEORGE     MUTASA     (NO)     (2)     A.B     MORAR     (3)     A.J     BOSCH     (4)     E.     ESTON     (5)     E.     GAVAZA     (6)    A.J.     VAN     RENSBURG     (7)     R.T     KARIDZA     (8)     L.     MABIKA     (9)     D.I.     MANCLINTOSH     (10)     I.     MIDDLETON     (11)     MUSHORIWA     </strong></li> </ol> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, MAVANGIRA JA &amp; MAKONI JA</strong></p> <p><strong>HARARE: 4 JUNE 2020 &amp; 24 JUNE 2021</strong></p> <p> </p> <p><em>T. Zhuwarara,</em> for the appellant</p> <p><em>F. Mahere</em>, for the 2nd -10th respondents</p> <p>No appearance for the 1st respondent</p> <p> </p> <p><strong>GARWE JA</strong></p> <p>[1]        This is an appeal against the judgment of the Labour Court confirming with an amendment a ruling by a labour officer that the appellant was guilty of an unfair labour practice and that the appellant pays to each of the respondents arrear compensation due to them for the period March 2011 to September 2015. The appellant seeks an order setting aside the confirmation and, in its place, another order dismissing the application for confirmation with no order as to costs. </p> <p> </p> <p> [2]       Having gone through the papers filed in this matter and after hearing counsel, I am not persuaded that the Labour Court was, except for part of its order, wrong in confirming the ruling by the labour officer.</p> <p> </p> <p><em>BACKGROUND FACTS</em></p> <p>[3]        The first respondent herein Fungai George Mutasa, is a labour officer to whom an allegation of unfair labour practice was referred by the second to the eleventh respondents (“the respondents”). He unsuccessfully attempted to settle the matter by conciliation following which he then heard the parties in order to come up with a draft ruling in terms of s 93 (5)(c) of the Labour Act, <em>[Chapter 28:01] </em>(“the Act”)<em>.</em></p> <p> </p> <p>[4]        The respondents are employed by the appellant and fall in what the appellant calls the E Band employment grade. The appellant is a wholly-owned subsidiary of Tongaat Hullett, a South African company. In addition to the benefits they enjoyed in Zimbabwe in terms of their conditions of employment commensurate with their grade, the respondents also enjoyed membership of the Tongaat Hullett Pension Fund, a South African registered pension fund as well as the Discovery Essential Saver Plan, which enabled them to access medical services in South Africa. On 21 February 2011, the respondents were advised of the intention to terminate their entitlement to both the Pension Fund and the Discovery Essential Saver Plan with effect from 28 February 2011. It was indicated in that communication that the respondents would each be paid accrued benefits in cash or alternatively such benefits would be transferred to a retirement annuity or pension preservation fund held in each employees name with a registered entity of the employee’s choice in South Africa. It was further indicated that the cost related to the current monthly fund contributions would be incorporated into each employee’s monthly United State Dollar package in Zimbabwe with effect from 1 March 2011. As regards the Discovery Essential Saver Plan, compensation was to be paid by incorporating the monthly member contributions, which translated to a hundred per cent contribution by Tongaat Hullett, into each employee’s monthly United States Dollar package in Zimbabwe.  </p> <p> </p> <p>[5]        The exchange of correspondence between the parties reveals that the respondents made several follow-ups to have the compensation paid and the contributions incorporated into their cash packages. This was to no avail. The papers further show that the appellant demanded that the respondents move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan Pension Scheme to enable these benefits to be processed.  Owing to the stalemate, the respondents approached the High Court and, in an order dated 26 February 2015, the court determined that the TSSPF remained valid and binding and that there was no obligation on the respondents to migrate to the Money Plan. The court consequently ordered the appellant to commence making its contributions and to actuate the TSSPF. Appellant was further ordered to pay the costs of the application. That order remains extant as it was not appealed against. Notwithstanding that order, the appellant did not pay compensation or incorporate the monthly contributions into the employee’s monthly United States Dollar package.</p> <p> </p> <p> [6]       In their statement of claim before the labour officer, the respondents averred that, in addition to benefits accruing in Zimbabwe, their conditions of service also provided for contractual entitlements to the Tongaat Hullett Pension Fund and the Discovery Essential Saver Plan, both of which were operational in South Africa. They further averred that it was the appellant that undertook to pay to each employee the accrued fund benefits or to transfer such fund to a retirement pension preservation fund and to incorporate the monthly fund contributions into the cash packages in Zimbabwe. They averred further that the pension fund and Saver Plan were open to all employees in the E Band, regardless of the nature of one’s pension in Zimbabwe.  The decision not to pay the respondents was a punitive measure because the respondents had dared to assert their rights to membership of the TSSPF in the High Court.  </p> <p> </p> <p> [7]       The respondents further alleged that the appellant had accepted its obligation to compensate the respondents when it communicated its decision to terminate the two benefits. The appellant had then proceeded to pay those employees who had agreed to join the Money Plan Pension Scheme in Zimbabwe but had then withheld compensation to the respondents. They therefore submitted that, by withholding the compensation, the appellant and its directors were guilty of an unfair labour practice. They therefore asked for a ruling directing the appellant to cease the unfair labour practice and to pay the arrear compensation.  They further averred that the amounts should be paid “without any additional tax losses” by them.</p> <p> </p> <p>[8]        In its response to the complaint, the appellant stated that the benefits which formed the subject of the matter were availed as a measure to cushion the employees from the harsh economic situation obtaining in Zimbabwe at the time and that these benefits were being administered by Tongaat Hullett, a South African company and the holding company of the appellant.  The benefits did not become vested in the contracts of employment of the respondents and remained discretionary on the part of the holding company. Therefore, so the appellant argued, whatever obligations the holding company created pursuant to the grant of these benefits do not bind the appellant. The benefits were paid and administered by Tongaat Hullett and, consequently, the appellant, as a subsidiary, had no obligation to actuate those benefits. The appellant further submitted that any claims that had arisen more than two years before the hearing of the matter were prescribed in terms of s 94 of the Act. In other words, if it was found that an unfair labour practice resulting in the underpayment of the respondents had taken place, then the monthly underpayments would constitute separate causes of claim.</p> <p> </p> <p>[9]        In his analysis of the evidence and submissions made on behalf of the parties, the labour officer found that the letter of 21 February 2011 unequivocally placed an obligation on the appellant to compensate the respondents and to incorporate the monthly fund contributions and member contributions into the respondents’ United States Dollar cash package in Zimbabwe with effect from 1 March 2011.  He further found that the fact that the pension fund was administered by another agency other than the appellant itself did not mean the employees were employed by that agency. He therefore concluded that the payment of compensation of accrued benefits was a right.  This was more so given the fact that the other employees in the same grade as the respondents who had migrated to the Triangle Money Plan have accessed their pension fund contributions and have had their Saver Plan incorporated into their monthly cash package in Zimbabwe. On the question of prescription, he found that, as the parties had been communicating over the issue, the matter was of a continuous nature and therefore the claim had not become time-barred. Lastly, he found that when the appellant’s managing director wrote to the respondents, at no stage did he indicate that he was not writing on behalf of the appellant and that he was doing so on behalf of the holding company. Consequently he concluded that, by withholding the benefits, the appellant was guilty of an unfair labour practice. He therefore ordered that the appellant cease such unfair labour practice and pay individual arrear compensation to each of the respondents.  </p> <p> </p> <p><em>PROCEEDINGS BEFORE THE LABOUR COURT</em></p> <p>[10]      Having made the above draft ruling, the labour officer referred the same to the Labour Court for confirmation in terms of s 93 (5)(a) of the Act.  In its submissions before the Labour Court the appellant argued that the labour officer had grossly erred in finding that the benefits, the subject of this matter, had become vested in the contracts of employment entered into by the respondents. The benefits remained discretionary on the part of Tongaat Hullett. It further argued that whatever obligations Tongaat Hullett may have created were not binding on the appellant, a mere subsidiary. Lastly, the appellant submitted that the labour officer had misdirected himself in not finding that some of the claims by the respondents had prescribed. Having submitted their complaint to the arbitrator in September 2015, the respondents would only have succeeded on those claims that had arisen after September 2013, i.e. within the period of two years from the date when the unfair labour practice or dispute arose.  The monthly underpayments would have constituted separate causes of action.  Therefore the pensions claimed from March 2011 to September 2013 would have become prescribed. </p> <p> </p> <p>[11]      In their submissions before the Labour Court the respondents stated as follows. The appellant was attacking findings of fact made by the labour officer. There was no allegation that such findings were irrational.  On prescription, they submitted that the unfair labour practice was continuing at the time the matter was referred to the labour officer and that, in terms of s 94 (2) of the Act, the claims had not prescribed.</p> <p> </p> <p> [12]     The Labour Court agreed with the labour officer, but for a different reason, that the unfair labour practice was continuing and therefore the claim was not prescribed in light of s 94 (2) of the Act. The court agreed with the other factual findings made by the labour officer but was of the view that the order directing the managing director and board of directors to effect payment was irregular as they had not been heard before the order was made.  The court accordingly confirmed the draft ruling but amended it to remove the reference to the managing director and board of directors from the order.</p> <p><em>PROCEEDINGS BEFORE THIS COURT</em></p> <p>[13]      Unhappy with the outcome of the confirmatory proceedings, the appellant noted an appeal to this Court.  It alleged that the Labour Court had erred:-</p> <ul> <li>In determining that the respondents’ claim was not prescribed.</li> <li>In confirming the finding by the labour officer that the appellant had an obligation to pay the respondents when it was apparent that the benefits claimed had arisen from an agreement to which appellant had not been a party.</li> <li>In making a finding as regards the respondents’ attendant tax obligations and placing an obligation on the appellant to pay any ensuing tax penalties.</li> <li>In assuming review and / or appellate jurisdiction during the confirmation proceedings when the court has no such power.</li> </ul> <p> </p> <p> [14]     In its heads of argument before this Court, the appellant has submitted as follows. Section 94 of the Act provides for a prescriptive period of two years from the date when the dispute or unfair labour practice first arose. Having submitted their claim to the arbitrator on 9 September 2015, any claims by the respondents prior to 9 September 2013 would have become prescribed as each monthly underpayment constituted a separate cause of action. The appellant further submitted that the benefits were initially offered by Tongaat Hullett, its South African holding company, which subsequently terminated the benefit. Its own attempts to incorporate the benefits into the respondents’ contracts of employment were not accepted by them and consequently never became a contractual entitlement. The benefits could therefore be extinguished without the consent of the respondents. It further submitted that, not being privy to the agreement between the respondents and Tongaat Hullett, it had no obligation to pay any of the benefits and, consequently, no unfair labour practice has been perpetrated by it. On the order directing the appellant to pay ZIMRA tax penalties, it was its submission that this was a declarator which the court <em>a quo </em>had no jurisdiction to make. The court had determined a contingent right, being the contingent tax penalty which had not arisen and may not arise at all. Lastly, it submitted that the Labour Court misconstrued its powers during confirmation proceedings. It could not, in terms of the law, rehear the matter. Nor could it amend the ruling to remove reference to the managing director.</p> <p> </p> <p> [15]     The respondents pray that the appeal be dismissed with costs. They have submitted as follows. In terms of s 94(2) of the Act prescription does not apply to a dispute or unfair labour practice which is continuing at the time it is referred to a labour officer.  The appellant continues to discriminate against the respondents and has refused to pay them their monthly dues. The wrong was a continuous one and the respondents’ claim was therefore not prescribed. The respondents have further submitted that they had no relationship with Tongaat Hullett outside of their employment contracts, which contracts entitled them to the benefits now the subject of this matter.  The appellant had at all times accepted its obligation to pay the benefits. They further argue that the order directing the appellant to pay tax penalties was proper and that the court <em>a quo </em>correctly exercised its confirmatory jurisdiction.</p> <p> </p> <p> [16]     During oral argument, Ms <em>Mahere</em>, for the respondents, raised an objection to the submission by the appellant’s counsel that s 94 (2) of the Act did not arise because the matter between the parties was a dispute and not an unfair labour practice.  She submitted that this was a new point being taken on appeal for the first time. The effect of that submission was that s 94(2) of the Act would not arise because the issue before the labour officer was a dispute and not an unfair labour practice.  At no point had the appellant taken the position that the matter between the parties was a dispute and not an unfair labour practice.  She submitted that, in any event, regard being had to s 6 (1)(e) of the Act, the appellant’s conduct constituted an unfair labour practice as the latter had withheld the benefits due to the respondents as punishment for having sought recourse in the High Court. This conduct, in addition to the failure to pay the benefits, falls squarely within the ambit of an unfair labour practice as defined in s 8 of the Act.  Moreover, the challenge in the first ground of appeal is whether or not the unfair labour practice was continuous and not whether the conduct was an unfair labour practice in the first place.  </p> <p> </p> <p> [17]     Counsel for the appellant denied that it had changed its submission on the question of prescription, thereby taking the respondents by surprise. He submitted that it was appellant’s primary position that there was no unfair labour practice and that even if it were so, the two year prescriptive period would still apply. The respondents’ cause has always been that the conduct by the appellant of withholding compensation was their basis for alleging an unfair labour practice. The appellant has always argued that the claims were prescribed and that no reliance could be placed on s 94 (2) of the Act. What the court <em>a quo </em>determined was the time when the dispute arose. On a proper appreciation of the common cause facts, the respondents’ claims for compensation were prescribed.</p> <p> </p> <p><em>ISSUES FOR DETERMINATION</em></p> <p> [18]     From the foregoing, it seems to me that four issues arise for determination by this Court.  The first issue relates to the question whether the matter referred by the respondents’ to the labour officer was referred as a mere dispute or an unfair labour practice and, concomitantly whether the claim by the respondents had become prescribed. The second issue is whether the court <em>a quo </em>was correct in confirming the labour officer’s ruling that the appellant had an obligation to pay the benefits.  The third is whether the court <em>a quo </em>correctly confirmed the order directing the appellant to pay additional tax losses by the respondents. The last is whether the court <em>a quo </em>could, in confirmation proceedings, re-hear submissions and amend the ruling.  I relate to each of these issues in the same order in which they arise.</p> <p> </p> <p><em>WHETHER THE MATTER REFERRED TO THE LABOUR OFFICER WAS A MERE DISPUTE</em></p> <p> [19]     The contentious issue that arises is whether the matter referred by the respondents to the labour officer was so referred as mere dispute or as an unfair labour practice and whether, in terms of s 94 (2) of the Act, the claims by the respondents were prescribed. There is no doubt in my mind that, although the respondents did not, at the time they approached the labour officer, specifically refer to the provisions of s 8 of the Act dealing with unfair labour practices by an employer, the gravamen of their complaint was one of an unfair labour practice and not just a dispute.</p> <p> </p> <p> </p> <p>[20]      The letter referring the matter to the Principal Labour Officer by the respondents’ legal practitioner is dated 8 September 2015. It states in no uncertain terms that the matter being referred was one “of breach of employment contracts and unfair practices by Triangle Limited.” It makes the allegation that the appellant had “withheld payments due to them as a way of punishing them for asserting their rights in court.” It further alleges “unlawful conduct which is not only discriminatory and breach of employment contracts but a blatant unfair labour practice which we hereby request your office’s intervention in terms of the Labour Act.” It then requests the labour officer to proceed in terms of s 93 of the Act.</p> <p> </p> <p>[21]      It is the contents of that letter that kick-started the process of conciliation. When conciliation failed, the labour officer came up with a draft ruling which was then referred to the Labour Court for confirmation. In the draft ruling the labour officer found that when the employees turned down the request for them to exit from TSSPF to the Triangle Money Plan, the appellant had “proceeded to compensate all executives who are members of the Money Plan Pension Scheme in Zimbabwe and withheld compensation only to those executives who all along have been and are still members of the Triangle Senior Staff Pension Fund.” He further found the employees’ “assertion of discrimination persuasive” and that the appellant “should not have precluded them from enjoying the incorporation of compensation into the cash package or their salaries on the basis of their refusal to exit from the Triangle Senior Staff Pension Scheme as prescribed by the Respondent.” The labour officer concluded that, by withholding compensation, “the appellant, its managing director and Board of Directors” were guilty of an unfair labour practice. In his founding affidavit to the application for confirmation, the labour officer states that he “presided over the matter on 25 September 2015 on the alleged breach of contract of employment and unfair labour practice.”</p> <p> </p> <p>[22]      Although the labour officer on occasions used the terms “matter, “dispute”, it is clear he used these interchangeably with the term unfair labour practice.  At no stage did the labour officer entertain the idea that what he was dealing with was a mere dispute as opposed to an unfair labour practice. It was for that reason that the labour officer went on to consider “whether the matter … between the contending parties were (sic) of a continuous nature”- a clear reference to s 94 (2) of the Act.</p> <p> </p> <p> [23]     The appellant itself accepted that the issue before the labour officer involved an investigation into whether or not it (the appellant) had committed an unfair labour practice. In its written response to the complaint raised before the labour officer, it submitted that the respondents were only entitled to those claims which had arisen within two years of the date of the submission of the matter to the labour officer.  It even accepted that, were it to be found that it had committed an unfair labour practice resulting in underpayment every month, then such monthly underpayments would constitute separate causes of action. It submitted that the respondents could not rely on subs (2) of s 94 of the Act and argue that the unfair labour practice (if such was one) was still continuing. In other words the appellant accepted that should the labour officer find that there was an unfair labour practice, he should further find that each such monthly underpayment constituted a separate cause of action in respect of which the two-year prescriptive period provided in subs (2) of s 94 would apply. At no stage did the appellant argue that the matter before the labour officer was not an unfair labour practice but rather a mere dispute – a point belatedly raised during oral argument.  In all the circumstances therefore I hold that the issue before the labour officer was whether the appellant had committed an unfair labour practice by deliberately withholding monthly payments of benefits and whether the individual monthly claims were in any way affected by the two-year prescriptive period.</p> <p> </p> <p><em>WHETHER THE RESPONDENTS’ CLAIMS HAD PRESCRIBED</em></p> <p>[24]      Having found that the issue before the labour officer was whether the appellant had committed an unfair labour practice, the issue that consequently arises before this Court is whether the monthly benefits, or any of them, had become prescribed. As already noted, the appellant’s position was that the respondents’ cause of action would arise every month and that in terms of s 94 of the Act such cause of action would become prescribed after a period of two years from the date when it arose. Accordingly the respondents were only entitled to succeed on those claims that had arisen within the period of two years before the lodgement of their complaint. The appellant, in its heads of argument before this Court, argued that the respondents cannot rely on subs (2) of s 94 because the section “clearly states as to when such a prescriptive period must be reckoned from.” However the appellant, as is clear from its heads, made no effort to interpret what subs (2) of the section means.</p> <p>[25]      That subsection states, in short, that prescription shall not apply to an unfair labour practice which is continuing at the time it is referred to a labour officer.  The question before the court <em>a quo </em>and this Court is the interpretation to be accorded to the phrase “which is continuing at the time it is referred.” Whilst the principle of a continuous unfair labour practice has not been fully developed in our jurisdiction, the South African Labour Appeals Court has had occasion to consider the interpretation to be accorded to a similar phrase in their labour legislation. A case in point is that of <em>SABC Ltd. v CCMA &amp; Ors</em> 2010 (3) BLLR 251 (LAC). At paragraph 27 of the judgment, the court remarked as follows:-</p> <p>“….The problem however is that the argument presented by the appellant is premised upon the belief that the unfair practice or unfair discrimination consisted of a single act. There is however no basis to justify such belief. While an unfair labour practice or unfair discrimination may consist of a single act, it may also be continuous, continuing or repetitive. For example, where an employer selects an employee on the basis of race to be awarded a once-off bonus, this could possibly constitute a single act of unfair labour practice or unfair discrimination because like a dismissal, the unfair labour practice commences and ends at a given time. But where an employer decides to pay its employees who are similarly qualified with similar experience performing similar duties different wages based on race or any other arbitrary grounds, then notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive. The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other, he is evincing continued discrimination.” </p> <p> </p> <p> </p> <p>[26]      I agree with the above remarks. Where, as in this case, the monthly benefits are withheld, the unfair labour practice is continual and repetitive. It will only terminate when such discriminatory conduct ceases and all the employees are treated the same. Section 94 (2) makes it clear that, in such a case, the prescriptive period of two years does not apply. In other words, even in a situation where the amounts claimed cover a period of, say, three years, the prescriptive period of two years would not apply as the unfair labour practice would be of a continuous nature.</p> <p> </p> <p>[27]      In the present case, it is not in dispute that the monthly benefits to which the respondents were entitled were being withheld. The practice was continuing. In terms of s 94 (2), the claims, even those that arose beyond the period of 2 years, were not prescribed.</p> <p> </p> <p><em>WHETHER THE COURT A QUO CORRECTLY FOUND THAT THE APPELLANT WAS LIABLE TO PAY THE BENEFITS</em></p> <p>[28]      It was the finding of the labour officer, subsequently confirmed by the court <em>a quo, that</em> the appellant was under an obligation to pay the various outstanding amounts, notwithstanding its claim that it was not privy to the agreement that gave rise to the conferment of those benefits by its parent company. The labour officer, in his draft ruling, found that the appellant had an obligation to compensate the respondents. He found that the appellant had authored the letter of 21 February 2011 to the individual employees undertaking to make such compensation. At no stage did the letter make reference to the compensation being a privilege or that the obligation to do so lay on its parent company. The labour officer also found that it is common practice for an employee’s pension to be held or administered by an entity other than the employer itself. He also found it strange that, whilst denying liability on the basis that the agreement was between the employees and the appellant parent company, the appellant was prepared to pay them had they agreed to move to the Triangle Money Plan.</p> <p> </p> <p>[29]      The labour officer made findings of fact. That these were made in the context of a draft ruling is neither here nor there. Those findings were not inconsistent with the evidence before him. The labour officer accepted the position that the pension fund was administered by the Tongaat Hullett Pension Fund. The correspondence that forms part of the record confirms that the respondents enjoyed the benefits in question by virtue of their membership of the Pension Fund. Nowhere does the appellant show the existence of a separate agreement between the respondents and the holding company. Had there been such an agreement, the appellant would, no doubt, have produced it. It did not do so. What is apparent is that the respondents enjoyed these pension benefits by virtue of their employment with the appellant and not because the holding company had separately entered into agreements with the respondents to provide these benefits. Indeed it was not in contention that the respondents did not have any other connection to the Tongaat Hullett Pension Fund except in their capacities as employees of the appellant. In the letter of 21 February 2011 the appellant accepted that the “letter and conditions contained therein are part and parcel of the revised terms and conditions of employment.”</p> <p> </p> <p> [30]     The court <em>a quo </em>agreed with the findings of the labour officer that it was the appellant that had the obligation to pay the benefits. This was a finding made on a consideration of all the evidence. Such a finding cannot be impugned unless the appellant shows that it was irrational – <em>Hama v National Railways of Zimbabwe</em> 1996 (1) ZLR 664 (5), 670 C – E; <em>Edward Misihairambwi &amp; 14 Ors v Africare Zimbabwe</em> SC 22/17. Absent demonstrable, material misdirections and clearly erroneous findings, the Labour Court was bound by the findings. No such finding can be made on the facts of this case.</p> <p> </p> <p><em>THE ORDER TO PAY ADDITIONAL TAX LOSSES</em>                       </p> <p>[31]      The appellant submits that the order for the appellant to pay additional tax losses was declaratory in nature. It submits that the court <em>a quo </em>had no jurisdiction to make such an order. During oral submissions, counsel for the respondents explained that what was envisaged were penalties to be imposed by ZIMRA owing to delays in the payment of tax by the respondents.</p> <p> </p> <p>[32]      I agree with the appellant that the court <em>a quo </em>made a determination on a contingent right, namely additional tax. Such tax penalty had not arisen and it is anyone’s guess whether it ever will be imposed. Neither the court <em>a quo </em>nor the labour officer provided the basis, in law, upon which this order was made. It is common cause neither party had made submissions on it.</p> <p> </p> <p>[33]      In any event, it is difficult to see how additional tax liabilities would arise, it being common cause that no payment had been made to the respondents. As I understand the law, the liability to pay tax would arise once the respondents were paid their benefits and not before. It is difficult to imagine ZIMRA imposing penalties on the respondents in respect of benefits that were the subject of court proceedings and which, to date, remain unpaid.</p> <p> </p> <p><em>WHETHER THE COURT A QUO PROPERLY EXERCISED ITS CONFIRMATORY ROLE</em></p> <p>[34]      As I understand the appellant’s submission on this aspect, the court <em>a quo </em>neither had review or appellate jurisdiction and could not therefore “rehear” the matter. It could not amend the ruling and was confined to either confirming it as it was or dismissing it in its entirety. It could not substitute its own order. </p> <p> </p> <p>[35]      In my view, there is no merit to the appellants’ submission in this regard. Section 93 (5b) of the Act allows the Labour Court to grant the application with or without amendment. In <em>Air Zimbabwe (Private) Limited v J.V. Mateko (2) Elijah Chiripasi and Others</em> SC 180/20, this Court had occasion to make the following pertinent remarks:</p> <p>            “(15)…</p> <p>It will be apparent from the above decision that when the Labour Court is called upon to confirm a draft ruling it is essentially being asked to exercise its powers of review.</p> <p>                        …   </p> <p>             (16) – (27)…</p> <p>(28) What the court <em>a quo </em>did was to confirm that the termination of employment was indeed lawful. In doing so, it removed reference to a declaratur. It also removed the names of the parties who had not been properly joined to those proceedings. It also made provision for reinstatement, alternatively payment of damages.</p> <p> </p> <p> (29)    In my view, there was no substitution of the order of the labour officer but rather a correction and addition to make the order more acceptable in terms of the law. At the end of the day therefore the order granted by the court <em>a quo </em>was one within the contemplation of the labour officer, the amendment having been made merely to ensure that the confirmed order accorded with the law.</p> <p> </p> <p>(30)  I am of the considered view, in light of the above sentiment, that the changes effected by the Labour Court were indeed amendments and that they cannot, by any stretch of imagination, be termed a substitution. As noted earlier in this judgment, labour officers are often lay persons with little or no training in matters legal. For that reason they are given the power to make draft rulings which are then subjected to scrutiny by the Labour Court, a specialised court in terms of labour and employment."</p> <p> </p> <p>[36]      In all the circumstances, therefore, I find nothing improper in the manner in which the court <em>a quo </em>handled the confirmation proceedings.</p> <p> </p> <p><em>DISPOSITION</em></p> <p>[37]      In light of s 94 (2) of the Act, the claims for unfair labour practice made by the respondents against the appellant were not prescribed, as these were of a continuing nature. The court <em>a quo </em>was correct in confirming the finding by the labour officer that the claims were not prescribed. The court was also correct in finding that the appellant, and not its parent company, was liable for the payment of the outstanding benefits. It was however irregular for the labour officer to order payment of possible tax penalties by the appellant. That part of the order should not have been confirmed.</p> <p> </p> <p>[38]      In the result, it is ordered as follows.</p> <ol> <li>The appeal is allowed only to the extent that the order directing the appellant to pay additional tax losses incurred by the respondents is set aside.</li> <li>Subject to paragraph 1 above, the appeal is otherwise dismissed.</li> <li>The appellant is to pay the costs of the appeal.</li> </ol> <p> </p> <p> </p> <p><strong>MAVANGIRA JA    :                       </strong>I agree</p> <p> </p> <p>                        <strong>MAKONI JA             :</strong>                       I agree</p> <p> </p> <p> </p> <p><em>Scanlen &amp; Holdernes</em>, appellant’s legal practitioners</p> <p><em>Chinawa Law Chambers</em>, 2nd – 11th respondent’s legal practitioners</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/supreme-court-zimbabwe/2021/77/2021-zwsc-77.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=50825">2021-zwsc-77.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/2021/77/2021-zwsc-77.pdf" type="application/pdf; length=497801">2021-zwsc-77.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/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/wages-and-salaries">Wages and salaries</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/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/period-prescription">Period of prescription</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</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/supreme-court-zimbabwe/2016/22-3">Misihairabwi &amp; 14 Others v Africare Zimbabwe (SC 22/2017 Civil Appeal No. SC 296/14) [2017] ZWSC 22 (05 July 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2020/180">Air Zimbabwe (Private) Limited v Mateko &amp; Ors (SC 180-20, Civil Appeal No. 105/19) [2020] ZWSC 180 (07 December 2020);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Thu, 15 Jul 2021 12:15:58 +0000 Sandra 10082 at https://old.zimlii.org Ngaru v Kusano (HH 265-21, HC 6160/20 Ref Case No. HC 2760/20) [2021] ZWHHC 265 (21 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/265 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 265-21</p> <p>HC 6160/20</p> <p>Ref Case No. HC 2760/20</p> <p>ESTHER NGARU</p> <p>versus</p> <p>LIVINGSTONE KUSANO</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 12&amp; 28 May 2021</p> <p> </p> <p> </p> <p><strong>Opposed Application- Special Plea</strong></p> <p> </p> <p><em>E.T Muhlekiwa</em>, for the plaintiff</p> <p><em>R. Gasa</em>, for the defendant</p> <p> </p> <p>            MUZOFA J: The plaintiff sued out summons for the division of immovable property acquired by the parties during the subsistence of their tacit universal partnership. Alternatively, the division of the immovable property acquired during the subsistence of the parties’ unregistered customary law union based on unjust enrichment. In opposition to the claim the defendant filed a special plea, that the claim is prescribed.</p> <p>The plaintiff and the defendant were living together as husband and wife in terms of an unregistered customary law union from December 1982 when lobola was paid. Three children were born of the union.  In 2010 the defendant gave the plaintiff “gupuro” a token of rejection thereby terminating the union. There is no dispute that this is when the plaintiff’s cause of action arose.</p> <p>            During the subsistence of the union the parties acquired both movable and immovable property. In order to obtain her share of the property, the plaintiff approached the community court in Bulawayo for division of property. She was awarded by consent an immovable property known as No 6 Birkley Street North End “the property”. The defendant was awarded No 32 Wigton Road, Avondale in Harare. Both properties were registered in the defendant’s name. When the defendant delayed in causing the transfer of the property, the plaintiff approached this court to compel transfer. The matter was heard and the court dismissed the application and set aside the community court order<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. The court found that the community court had no jurisdiction to dissolve a customary law union neither could it share the “matrimonial” property because there was no marriage recognized at law between the parties. This was on 15 October 2020, some 7 years after the order of the community court. The plaintiff was undeterred, faced with this new hurdle, she did not throw in the towel. The plaintiff issued out summons as already set out.</p> <p>            In opposing the claim , the defendant filed a plea in bar that the claim is prescribed in terms of s 14 and s 15(d) of the Prescription Act [<em>Chapter 8:11</em>] (hereinafter referred to as the Act). The submission is that, the claim is founded in general law. Tacit universal partnership and unjust enrichment are general law concepts. As such prescription is applicable. The declaration is clear that the unregistered customary law union between the parties was terminated in 2010. The court process in the community court did not interrupt the running of prescription since the judgment was subsequently set aside. The summons in the main matter was issued in October 2020 almost 10 years after the cause of action arose.</p> <p>            In response, the plaintiff insisted on the claim. It was argued that the cause of action is based on the unregistered customary law union, pleading tacit universal partnership or unjust enrichment is for purposes of division of property only. In reality the claim is founded on customary law and in terms of s 3(2) of the Act prescription does not apply and referred to case authority for that proposition <a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> where the court confirmed the position of the law that prescription does not apply where the rights and obligations of the parties are determined in terms of customary law.</p> <p>The issue for determination is whether prescription applies in the circumstances of this case. This is a matter of interpretation of statutes. The golden rule of interpretation is that where the language of the statute is clear and unambiguous, the words used ought to be given their ordinary grammatical meaning. However where the language used is ambiguous and lacks clarity or may result in an absurdity, the court will interpret it and give it meaning. In the event of an absurdity the court is required to give a meaning that does not result in an absurdity because it is presumed that the legislature in enacting any statute does not intend an absurdity<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a>.</p> <p>In <em>Coopers and Lybrand and Others v Bryant</em><a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>  the court noted,</p> <p>‘According to the ‘golden rule’ of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument”</p> <p> </p> <p>I find no ambiguity in the language used in s3 (2) of the Act. The intention of the legislature can easily be ascertained from the ordinary and grammatical meaning of the language used.</p> <p> Section 3(2) of the Act reads:</p> <p>"In so far as any right or obligation of any person in relation to any other person is governed by customary law this Act shall   not apply."</p> <p> </p> <p>            The section deals with the applicable law in the determination of the parties’ rights and obligations. It is the applicable law therefore that determines whether the provisions of the Act are applicable or not. The applicable law is determined by the nature of the pleadings through the cause of action.</p> <p>I was urged to consider the genesis of the right and conclude that the cause of action is based on customary law therefore the provisions of the Act do not apply. There is a difficulty in the submission. The plaintiff’s cause of action is based on tacit universal partnership and unjust enrichment. The plaintiff cannot rely on the customary law union since the cause of action is not based on the customary law union. Section 3 (2) of the Act is very clear and allows of no other interpretation. In other words where customary law is applied in the resolution of a dispute, the provisions of the Act will not apply. The opposite is equally true, where general law is applicable in the determination of the parties’ rights the provisions of the Act will apply. This interpretation resonates with reason since the concept of prescription is unknown under customary law.</p> <p>The plaintiff and the defendant were married in terms of an unregistered law union and therefore customary law would apply in the division of the property they acquired together. However in light of s3 of the Customary Law and Local Courts Act (Chapter 7:05), a claim on a proper cause of action under general law can be made. Customary law applies in civil cases where, regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply. It does not apply if the justice of the case otherwise requires. Where the application of customary law would bring injustice, the general law will apply. Indeed our courts have applied general law in many cases where the plaintiff has properly set out her cause<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>. Thus even if parties are married in terms of an unregistered customary law union, their rights and obligations can be determined applying general law provided the cause of action is properly pleaded.  </p> <p>The plaintiff’s cause of action as set out in the summons is</p> <ol> <li>Sharing of immovable property that was acquired by the parties during the subsistence of their universal partnership alternatively</li> <li>The plaintiff claims against the defendant sharing of immovable property acquired during the subsistence of an unregistered customary law union between the parties based on the principle of unjust enrichment.</li> </ol> <p>The pleaded causes of action are tacit universal partnership and unjust enrichment. These two concepts are unknown under customary law. They are common law concepts. The <em>Pasipanodya</em> case (supra) does not assist the applicant. In that case, the cause of action was based on the unregistered customary law union. The cause of action was not based on general law as set out in the plaintiff’s summons.</p> <p>In submitting that the provisions of the Act do not apply in this case, the plaintiff is blowing hot and cold. In pleading general law concepts as causes of action, she wants general law to apply in her circumstances. The plaintiff dedicated some paragraphs in her founding affidavit narrating how they lived a life that deserves the application of general law. It would seem that the plaintiff wants a restricted application of general law. If general law applies in the sharing of the parties’ property, therefore all the general law principles must apply. It would be an absurdity and an affront to the proper administration of justice to selectively apply the principles of general law by applying only the two concepts of general law as pleaded by the applicant and turn a blind eye to other general law principles. I was not given any authority for such a proposition which l believe maybe problematic.</p> <p>The court fully appreciates the plaintiff’s unfortunate circumstances. The status of a customary law union has not developed in light of modern trends .The legislature has not intervened to properly guide the parties on how to proceed in the event of termination of the union despite numerous calls from different sections of society<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a>.As a result parties grope in the dark in pursuit of a share in their hard earned properties. While they knock different doors time lapses as in this case. The plaintiff held on to a nullity from 2012 until 2020. Surprisingly the defendant who initially consented to the division of property now raised a sword to destroy the plaintiff’s claim.   </p> <p>            As observed in the <em>Zembe</em> case (supra), it is for the litigant through their legal practitioners to approach the court and properly plead their cases. In this case even if the plaintiff properly pleaded her case, the claim had prescribed. This is so because in the determination of the parties’ rights and obligations general law shall  apply. As such the provisions of s3 (2) of the Prescription Act do not apply.</p> <p>            It is common cause that the summons was issued after the prescriptive period. It was also conceded that the litigation in the community court did not interrupt the running of prescription. On that basis the special plea must succeed.</p> <p>                        The defendant seeks costs on a higher scale. I do not find any justification for costs on a higher scale. The plaintiff’s claim was justified considering that the matrimonial property was not shared except for the technicality of prescription.</p> <p>           </p> <p>Accordingly the special plea is upheld</p> <p> </p> <p>            The plaintiff’s claim dismissed with costs.</p> <p> </p> <p> </p> <p><em>Gasa-Nyamadzawo &amp; Associates</em>, Plaintiff’s Legal Practitioners</p> <p><em>Muhlekiwa Legal Practice</em>, Defendant’s Legal Practitioners</p> <p>           </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> <em>Esther Kusano (nee Ngaru)</em> v <em>Livingstone Kusano and Another</em> HH 647/2</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> <em>Pasipanodya </em>v <em>Muchoriwa</em> 1997 (2) ZLR 182 (SC)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Endeavour Foundation and Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) AT P356F-G</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> 1995 (3) SA 761 (A) at p 767</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Jengwa v Jengwa 1999 (2)ZLR 121 (H),Mtuda v Ndudzo 2000 (1) ZLRr 710 (H)</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> Jenke v Zembe</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/2021/265/2021-zwhhc-265.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24020">2021-zwhhc-265.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/2021/265/2021-zwhhc-265.pdf" type="application/pdf; length=354685">2021-zwhhc-265.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/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/enrichment">ENRICHMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/unjust-enrichment">Unjust enrichment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interpretation-statutes">INTERPRETATION OF STATUTES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ambiguity-interpretation">Ambiguity (INTERPRETATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/golden-rule-interpretation">Golden Rule (INTERPRETATION)</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/partnership">PARTNERSHIP</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/tacit-universal-partnership">Tacit universal partnership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1990/2">Customary Law and Local Courts Act [Chapter 7:05]</a></div></div></div> Thu, 10 Jun 2021 07:11:13 +0000 Sandra 10040 at https://old.zimlii.org Manjovha v Delta Beverages (Private) Limited (SC 64/21, Civil Appeal No. SC 12/19) [2021] ZWSC 64 (24 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/64 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 64/21</p> <p>Civil Appeal No. SC 12/19</p> <p><strong>DISTRIBUTABLE</strong><strong>  (60)</strong></p> <p><strong>PATRICK     MANJOVHA</strong></p> <p><strong>V</strong></p> <p><strong>DELTA     BEVERAGES     (PRIVATE)     LIMITED</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, HLATSHWAYO JA &amp; BHUNU JA</strong></p> <p><strong>HARARE: 30 JANUARY 2020 &amp; 24 MAY 2021.</strong></p> <p> </p> <p><em>L. Ziro, </em>for the appellant                                                         </p> <p><em>F. Mahere, </em>for the respondent</p> <p> </p> <p>                   <strong>BHUNU JA:</strong>  This is an appeal against the whole judgment of the Labour Court <em>(</em>the court<em> a quo)</em>.  The order appealed against is dated 14 November 2018.  That order upheld the respondent’s objection <em>in limine</em> to the effect that the appellant’s claim had prescribed.  Consequently it dismissed the appellant’s application for condonation of late noting of appeal and extension of time within which to note the appeal.  Aggrieved by the judgment <em>a quo, </em>the appellant approached this Court on appeal for relief.</p> <p> </p> <p><strong>PRELIMINARY OBJECTION</strong></p> <p>                   On 30 of September 2019 the learned counsel for the respondent gave notice of intention to raise a preliminary point premised on the appellant’s alleged failure to comply with the peremptory provisions of r 37(1)(a) of the Supreme Court rules 2018.  The Rule provides as follows:</p> <p>“37(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by </p> <p>            the appellant or his or her legal practitioners which shall state –</p> <ol> <li> the date on which, and the court by which, the judgment appealed against was given;”</li> </ol> <p>                   The basis of the objection is that the appellant did not state the correct date when judgment was handed down as is required by r 37(1)(a) of the Supreme Court Rules 2018.  The submission is that the appellant in his notice of appeal stated 14 November 2018 as the date judgment was handed down when the actual date of judgment was 3 May 2019.</p> <p> </p> <p> </p> <p>                   A perusal of the record of proceedings suggests that there were two hearings presided over by the same judge involving the same parties in the same case number LC/H/603.  The first sitting was on 7 November 2018 where the learned judge <em>a quo</em> issued the following order under order number LC/H/ORD/1229/2018:</p> <p>“WHEREUPON after reading documents filed of record and hearing counsel for both parties:</p> <p> </p> <p>   IT IS ORDERED THAT:</p> <ol> <li>The preliminary issues are upheld.</li> <li>The claim is prescribed.</li> <li>The application for condonation of late noting of appeal and extension of time be and is hereby dismissed with costs.”</li> </ol> <p>                   The second case according to the record of proceedings commenced on 7 November 2019 and the learned judge <em>a quo </em>issued an order substantially on the same lines but under a different judgment number LC/H/115/2019. The order reads:</p> <p>          “It is accordingly ordered that:</p> <ol> <li>The preliminary issues are accordingly upheld, the claim is prescribed.</li> <li>The application for condonation of late noting of appeal and extension of time be and is hereby dismissed with costs.”</li> </ol> <p> </p> <p>                   The appellant in his sole discretion has elected to appeal against the first order under order number LC/H/ORD/1229/2018.  He correctly stated the date on which the judgment was given as appears on the face of the corresponding order.  He has not appealed against the subsequent order of 2019 which appears to be a restatement of the initial order of 2018 above.</p> <p>                   Although the dates of hearing appear suspiciously to have been confused that issue was not ventilated before us.  We therefore came to the unanimous conclusion that the appellant correctly cited the date appearing on the face of the order appealed against.  It being an entrenched position in our law that one appeals against the order of court and not the reasons we unanimously upheld the appellant’s contention that he had complied with the law by stating the date appearing on the face of the first court order. We accordingly dismissed the respondent’s objection <em>in limine</em> without any further ado.</p> <p>                   The appellant subsequently applied for leave to appeal to this Court.  The application was granted by the court <em>a</em> <em>quo </em>on 19 December 2018 with costs being costs in the cause.</p> <p><strong>BRIEF SUMMARY OF THE CASE.</strong></p> <p>                        The appellant was employed by the respondent as a truck driver/salesman.  He was charged with theft of his employer’s property and he paid an admission of guilt fine to the police.  He was subsequently dismissed from employment for theft in terms of the respondent’s registered code of conduct on 29 January 2015.  He appealed to the works council without success.</p> <p>       On 18 March 2015 he was served with a letter advising him of the dismissal of his appeal and if aggrieved to appeal to the court <em>a quo</em> within a period of 14 days in terms of the registered code of conduct.</p> <p> </p> <p>                   The appellant did not appeal to the court <em>a quo</em> within the prescribed time limit.  He applied for condonation of late noting of appeal and extension of time within which to note the appeal.  His application was successful and on 20 January 2016 he was ordered to lodge his appeal within 7 days of the order.</p> <p>                   The appellant was again in default by failing to comply with the 7 days period.  He again belatedly approached the court <em>a quo </em>2 years later on 17 August 2018 with an application for condonation of late noting of appeal and extension of time within which to note the appeal.  The application was unsuccessful hence this appeal.</p> <p><strong>FINDINGS OF THE COURT <em>A QUO</em></strong></p> <p>                   In dismissing the application the court <em>a quo</em> found that the appellant’s cause of action had prescribed in terms of the Prescription Act [<em>Chapter 8:11</em>].  This was because of his failure to successfully prosecute his appeal within the prescribed 3 year period from the date of his dismissal.</p> <p> </p> <p>                   The court <em>a quo</em> also found that in the absence of a provision in the registered code of conduct authorising it to extend the 14 day period within which the appellant was obliged to appeal, it had no jurisdiction to extend the <em>dies induciae</em>.                           </p> <p><strong>THE APPELLANT’S GROUNDS OF APPEAL.</strong></p> <p> </p> <p>                   Arising from the above two findings of the court <em>a quo</em>, the appellant has raised the following two grounds of appeal:</p> <p>“1.  The court <em>a quo</em> erred and misdirected itself at law by concluding that the</p> <p>appellant’s right to appeal the decision of the Works Council had prescribed in terms of the Prescription Act [<em>Chapter 8:11</em>] by computing the period (of) prescription began to run from 18 March 2015, while overlooking the fact that the Appellant’s right to appeal and time to appeal had been successfully condoned and extended under LC/H/19/16 granted on the 20th of January 2016.</p> <p> </p> <ol> <li>The court <em>a quo</em> erred and misdirected itself by concluding that (the) Labour Court does not have jurisdiction and power to condone late filing of appeals sought to be made outside the days stipulated by an Employment Code agreed to by the parties and neither can the Labour Court extend the time within which such appeals can be made outside the days stipulated in an employment Code.”</li> </ol> <p> </p> <p><strong>ISSUES FOR DETERMINATION.</strong></p> <p> </p> <p>                   The grounds of appeal raise two issues for determination:</p> <ol> <li>Whether or not the appellant’s cause of action has prescribed.</li> <li>Whether or not the Labour Court has the jurisdiction to extend the time within which to appeal set out in the employment code of conduct.</li> </ol> <p>             </p> <p><strong>WHETHER OR NOT THE APPELLANT’S CAUSE OF ACTION HAS PRESCRIBED.</strong></p> <p>                   It is trite that ordinary debts are irrevocably extinguished by prescription after 3 years in terms of s 15 (d) of the Prescription Act.  Section 2 defines a debt as including anything that may be sued for.  That definition squarely brings an appeal within the ambit of the definition of a debt.  The definition therefore renders an appeal subject to the Prescription Act.  It is therefore necessary to ventilate the time frames in this case to see if the appellant’s appeal falls foul of the Act.</p> <p>                   In this regard it is common cause that the appellant’s cause of action arose from his dismissal from employment by the disciplinary committee on 29 January 2015.  The notice of dismissal was served on him on 6 February 2015.  He lodged various appeals and applications which interrupted the running of prescription in terms of s 7(2) of the Act.  Subsection (3)(b) however provides that if one fails to successfully prosecute his cause of action and in this case his appeal to finality the interruption shall lapse and the running of prescription shall not be deemed to have been interrupted.  The subsection provides as follows:</p> <p>   “(3) Any interruption in terms of subsection (2) shall lapse, and the running of</p> <p>prescription shall not be deemed to have been interrupted, if the person claiming ownership in the thing in question—</p> <p> </p> <p>(<em>a</em>) does not successfully prosecute his claim under the process in question to final judgment; or</p> <p> </p> <p>(<em>b</em>)   successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside.”</p> <p> </p> <p>       The section is couched in clear unambiguous terms.  Once a litigant has failed to successfully prosecute his cause of action and in this case his appeal to finality the interruption lapses and the running of prescription is not deemed to have been interrupted.</p> <p> </p> <p><strong>APPLYING THE LAW TO THE FACTS.</strong></p> <p>                   It is common cause that on 20 January 2016 the court <em>a quo</em> gave the appellant 7 days within which to prosecute his appeal with effect from the date of the order.  He failed to prosecute his appeal within the prescribed period with the result that his appeal lapsed and prescription was deemed not to have been interrupted by operation of law.</p> <p>                   Prescription began to run on 6 January 2015 when he was served with notice of dismissal, the set period of prescription of 3 years had already set in as at the time of the court <em>a quo’s</em> judgment on 14 November 2018.</p> <p>                   In <em>Hodgson v Granger&amp; Anor</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a> the court articulated the purpose of prescription, it said:</p> <p>“It is important, in this exercise of interpretation, to emphasise that it is trite that the whole purpose of statutes of limitation is to ensure that a person who has a valid cause of action, of which he is aware, proceeds reasonably timeously to prosecution thereof before events become ‘stale’.  It is absolutely clear that the purpose is to penalise the dilatory creditor but not a creditor who is unaware, through no fault of his own, of the cause of action at his disposal.”</p> <p>                   As the appellant was eminently aware of his cause of action right from the beginning way back in January 2015, his dilatoriness in prosecuting his appeal deserves censure to give effect to the purpose of the Act.</p> <p><strong>DISPOSITION</strong></p> <p>                   The net effect of the appellant’s failure to prosecute his appeal in the court <em>a quo </em>is that there can be no valid appeal before this Court in the absence of any appeal having been placed before the court<em> a quo</em> in respect of this matter. The appellant’s failure to successfully note his appeal with the court <em>a quo</em> within the 7 day period as ordered by the court sounded the death knell for his appeal as the 3 year prescription period had already run its course.</p> <p>                   From the foregoing, the learned judge <em>a quo</em> cannot be faulted for holding that the appellant’s appeal has prescribed for want of successful prosecution within a period of 3 years.  That finding of fact strips the court of the jurisdiction to determine the second issue.</p> <p> </p> <p>                   That being the case, the appeal can only fail. Costs follow the cause.</p> <p> </p> <p>       It is accordingly ordered that:</p> <p> </p> <ol> <li>The appeal be and is hereby dismissed.</li> </ol> <p> </p> <ol> <li>The appellant is to bear the costs of suit.</li> </ol> <p><strong>GWAUNZA DCJ:</strong>                                              I agree</p> <p><strong>HLATSHWAYO JA:</strong>                                         I agree</p> <p> </p> <p><em>Hungwe and Partners, </em>the appellant’s legal practitioners.</p> <p> </p> <p><em>Dube Manikai Hwacha, </em>the respondent’s legal practitioners.</p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> 1991 (2) ZLR 10 (H)</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/2021/64/2021-zwsc-64.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33428">2021-zwsc-64.docx</a></span></div><div class="field-item odd"><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/2021/64/2021-zwsc-64_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33428">2021-zwsc-64.docx</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/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/code-conduct">Code of conduct</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal-0">Dismissal</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/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div></div></div> Tue, 08 Jun 2021 13:20:43 +0000 Sandra 10025 at https://old.zimlii.org Sibanda v Moyo And 5 Others (HB 51-21, HC 2422/19) [2021] ZWBHC 51 (25 March 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/51 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>TRYPHINE SIBANDA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>LIBATI MOYO</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>TALKMORE NOMATHAMSANQA KHUMALO</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>BENJAMIN NLEYA</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE MASTER OF THE HIGH COURT N.O.                   </strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>CITY OF BULAWAYO N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>REGISTERAR OF DEEDS N.O.</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 28 JULY 2020 &amp; 25 MARCH 2021</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>Miss S. Mbondiya</em> for the applicant</p> <p><em>S. Siziba</em> for 1st respondents</p> <p> </p> <p>                <strong>MAKONESE J:        </strong>In terms of our law, and in accordance with the provisions of section 25 of the Administration of Estates Act (Chapter6:01), a deceased estate is represented by an executor or executrix duly appointed and issued with letters of administration by the Master.  An executor accepts the position of legal representative of the deceased with all the rights and obligations attached to that position.  It follows that because the deceased estate is vested in the executor, he is the only person who has <em>locus standi</em> to bring any action relative to property belonging to the deceased estate.  Any person who purports to institute proceedings on behalf of a deceased estate without the requisite authority does not enjoy the right of audience before a competent court.  Authority to institute proceedings on behalf of a deceased estate derives from the provisions of the Administration of Estates Act.</p> <p>            The applicant seeks an order against the respondents in the following terms:</p> <p>            “It is ordered that:</p> <p> </p> <ol> <li>The respective and purported cession of rights, title and interest in the immovable property, being stand number 864/2 Old Magwegwe, Bulawayo by the 2nd respondent in her official capacity as the executrix dative of the Estate Late Richard Moyo DRBY No. 1584/02 to the 2nd respondent and him in turn to 1st respondent be and is hereby declared null and void and accordingly set aside.</li> <li>The 5th respondent be and is hereby directed to effect the cancellation of the respective memorandum of agreement between itself the third respondent, and in turn the 1st respondent, in respect of the immovable property being stand number 864/2 Old Magwegwe, Bulawayo.</li> <li>The memorandum of agreement of sale between 5th respondent and the late James Moyo be and is hereby reviewed.</li> <li>The 4th respondent be and is hereby directed to re-open the respective estates of the late James Moyo DRBY No. 950/02and Richard Moyo DRBY No. 1584/02 for the purposes of effecting the redistribution of the estates in accordance with the laws of intestate succession governing Zimbabwe.</li> <li>The 4th respondent be and is hereby directed to appoint a neutral executor to facilitate the proper distribution of the assets of the estate of the late James Moyo DRBY No. 950/02, Richard Moyo DRBY 1584/02 and Knowledge Moyo DRBY No. 992/19, respectively in accordance with the laws of intestate succession governing Zimbabwe.</li> <li>1st, 2nd and 3rd respondents to pay the costs of suit jointly and severally, the one paying the other to be absolved.”</li> </ol> <p>The matter is opposed by the 1st respondent who has raised certain preliminary points which would be dispositive of the matter, if sustained.  It shall be necessary to deal with those preliminary objections before dealing with the merits.</p> <p><strong>Factual background</strong></p> <p>            The applicant in this matter claims to have been married to the late Knowledge Moyo.  It is apparent from the founding affidavit that the matter concerns the Estate of the Late James Moyo who died on 25th January 2001.  The matter also deals with the estate of the late Richard Moyo who died in November 2002.  Richard Moyo and Knowledge Moyo were sons of the late James Moyo.  The applicant alleges that she was customarily married to the late Knowledge Moyo sometime in 1991.  During the time they lived together they resided at stand umber 864/2 Old Magwegwe (the property in dispute). On 16th March 2010, Knowledge Moyo died.  1st respondent purchased stand number 864/2 Old Magwegwe, Bulawayo in the year 2003 from the 3rd respondent.  1st respondent was responding to an advertisement for the sale of the property which appeared in the Chronicle Newspaper.  1st respondent paid the full purchase price for the property.  Transfer of the rights, title and interest in the property was effected into the names of 1st respondent.  At the time of the sale of the property in dispute 1st respondent never met the late James Moyo, the late Richard Moyo and 2nd respondent.  1st respondent never met the applicant and crucially, at the time of the sale of the property applicant was not the executor of any of the deceased estates of the late James Moyo, the late Richard Moyo nor the late Knowledge Moyo.  The applicant has stubbornly remained in the property in dispute and has sought to re-open estates that were wound up years ago in terms of the law.</p> <p>Applicant alleges that the late Knowledge Moyo was entitled to benefit from the estate of the late James Moyo and that as such, she is also entitled to benefit from the estate of the late James Moyo by virtue of being married to the late Knowledge Moyo.  The applicant seeks to make decisions in respect of the estate of the late James Moyo through the estate of Knowledge Moyo .  Applicant has not placed any cogent proof to show that she is the surviving spouse of Knowledge Moyo.  Knowledge Moyo never laid any claims in the estate of the late James Moyo during his life time.  Applicant has not shown the basis under which she is representing the late Knowledge Moyo and the late Richard Moyo.  1st respondent contends that in essence applicant has no cause of action and has no power to institute these proceedings.  Further, and in any event, 1st respondent avers that applicant’s claims are prescribed at law in that applicant failed to bring the claims within the required period.  A further point raised <em>in limine</em> is that there are material disputes of fact which cannot be resolved on the papers.  The procedure adopted is wrong and for that reason the matter ought simply to be dismissed without hearing the merits.</p> <p><strong><em>Locus standi</em></strong></p> <p>            It is not in dispute that applicant is not claiming that she is a beneficiary in the estate of late James Moyo.  Applicant is claiming that her customary husband the late Knowledge Moyo ought to have benefited from the estate of his father the later James Moyo.  It is apparent therefore, that the applicant is seeking to claim a benefit from the estate of the late James Moyo through her husband who is now deceased.  What this means in practical terms is that applicant is seeking to represent the interests of her late husband, if ever he had legitimate claims in the property in dispute.  It is clear that the applicant is not an executrix in the estate of the deceased persons, James Moyo, Richard Moyo and Knowledge Moyo.</p> <p>            Applicant clearly has no <em>locus standi</em> to institute the proceedings against the respondents.  The position in our law is settled.  In terms of section 25 of the Administration of Estates Act a deceased estate is represented by an executor or executrix duly appointed by the Master.</p> <p>            See <em>Nyandoro</em> vs <em>Nyandoro</em> HH-89-08, where KUDYA J (as he then was) clearly laid down the position that an executor occupies the position of a legal representative of the deceased.  The executor has full rights and obligations to bring action on behalf of the deceased estate.  In this matter the applicant may not claim a benefit that is not due to her.</p> <p>            It is trite that <em>locus standi</em> is the capacity for a party to bring a matter before a court of law.  The law is clear on the point that to establish <em>locus standi</em>, a party must show a direct and substantial interest in the matter.  See <em>United Watch &amp; Diamond Company (Pty) Ltd &amp; Ors</em> v <em>DISA Hotels Ltd &amp; Anor</em> 1972 (4) SA 409 (C) and <em>Matambanadzo</em> v <em>Goven</em> SC-23-04.</p> <p>It is clear from the circumstances of this matter that the applicant is not an executor in the estates of the late James Moyo, Richard Moyo and Knowledge Moyo.  It is settled law that for a person to have <em>locus standi</em> to bring proceedings in any action, he must have sufficient personal interest in the matter concerned. Usually, only a person who has direct, personal or financial in the remedy sought has the <em>locus standi </em>to seek the remedy in court.  The personal interest that a person may have will provide the basis for legal standing to bring to court any legal action or cause.  Personal interests include personal liberty, monetary claims, legitimate expectation in property claims, amongst several other remedies.</p> <p>            I conclude therefore, that on the facts before me, the applicant has no capacity to institute these proceedings as she has not been appointed executrix to the estate Knowledge Moyo’s estate.  In any event it has not been shown that Knowledge Moyo was entitled to benefit from the estate of the late James Moyo.  Knowledge Moyo who died way back in 2010 never lodged any claim in the estate of his late father James Moyo who died earlier in 2001.</p> <p>            I would uphold this preliminary point and rule that the applicant has failed to show that she has <em>locus standi</em> to bring this action.  For the sake of completeness, however I shall proceed to the other preliminary objections raised in this matter.</p> <p><strong>Material disputes of fact</strong></p> <p>There are substantial disputed facts in this matter which the court cannot dispense with without landing <em>viva voce</em> evidence.  The applicant has to prove to this court that indeed she is the surviving spouse to the late Knowledge Moyo.  The applicant is claiming fraud that occurred at the 4th and 5th respondent’s offices.  Both parties have to give evidence surrounding these allegations.  These disputes of fact are material and cannot be resolved without the need to call oral evidence from these authorities.  The alleged fraud has to be proved.  It is not sufficient to make bald and substantial allegations.</p> <p>            In <em>Supa Plant Investments (Pvt) Ltd</em> v <em>Chidavaenzi</em> 2009 (2) ZLR 132 (H), MAKARAU JP (as she then was) held that in application proceedings a material dispute arises when the material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.  This matter is fraught with disputes of fact which cannot be ventilated without leading oral evidence.  Most of the parties mentioned in this dispute are now deceased.  The allegations raised by the applicant cannot be dealt with by the court without calling evidence from the cited parties, who themselves may not have direct knowledge regarding the estate of James Moyo and other deceased persons whose estates have long been wound up.</p> <p>            The second preliminary point is upheld.  The applicant adopted the wrong procedure.  This matter cannot be resolved by way of a court application.  The applicant was aware that there were several disputes of fact but nonetheless proceeded with these claims.</p> <p><strong>That applicant’s claims are prescribed at law</strong></p> <p>            The stated position is that any claim or challenge against the distribution of estate property in a First and Final Liquidation and Distribution Account must be brought within 3 years of the Master’s certification of the said account otherwise the claim becomes prescribed.  See <em>Nyandoro &amp; Anor</em> v <em>Nyandoro &amp; Ors (supra)</em> and <em>James &amp; Others</em> v <em>Sikariyoti &amp; Ors</em> SC-29-05.</p> <p>In the matter of <em>James &amp; Ors</em> v <em>Sikariyoti (supra)</em> the applicant was the eldest son of the deceased father who had passed away in 1983.  He had done nothing to assert his rights to heirship against his young brother who had been appointed heir from 1986 up to 2003 when the stand in dispute was sold to an innocent purchaser and he thereafter filed an urgent application at the High Court to try and block the cession of rights on the alleged basis that he was the heir.  The High Court held that his claim regarding the stand in question prescribed. This decision was upheld by the Supreme Court on appeal.  At pages 4 to 5 of the cyclostyled judgment, CHIDYAUSIKU CJ stated as follows.</p> <p><em>“On these facts the learned judge in the court a quo dismissed the application on the basis that James and the rest of the appellants had done nothing over a period of time to protect their rights.  In this regard he placed reliance on the case of Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd 1972 (2) SA 464 (W) at page 477-478 where it</em> <em>was held that –</em></p> <p><em>“It is the idle and slovenly owner, and not one who is</em> <em>alert but incapable of</em> <em>acting, who may lose his property by prescription”.</em></p> <p> </p> <p><em>The rationale of our law of acquisitive prescription is that an owner who negligently fails to protect his interest against a stranger in possession of his property shall forfeit the property to the possessor.  The learned judge concluded that the principles set out in the above was applied to the case before him, and accordingly dismissed the application”.</em></p> <p> </p> <p>            The Supreme Court in <em>James &amp; Ors</em> v <em>Sikariyoti (supra)</em> concluded the matter with the following remarks:</p> <p>“<em>The applicants in this matter were fully aware that the stand was registered in the name of Sikariyoti since 1986.  They did nothing about it and it was only when Sikariyoti had sold his rights in the stand that they sought to assert their rights.  In my view the learned judge was correct in dismissing the application.  It is for these reasons that the appeal is dismissed with costs”.</em></p> <p> </p> <p>            In this matter the applicant and her alleged husband did nothing to assert their alleged rights against the estate late James Moyo from 2002 when they were aware of all the facts constituting their alleged cause of action. They did not seek to have the estates re-opened.  As if that was not enough, the applicant and her alleged husband became aware that 1st respondent had purchased the property in question before 2006 and did absolutely nothing until 2010 when the late Knowledge Moyo passed on.  Therefore, the applicant continued to reside at the property knowing fully well that she had no right at law to do so.  Applicant has made her bed of thorns and she must lie thereon.</p> <p>            Another relevant case is <em>Ngwenya</em> v <em>Hlabangana &amp; Anor</em> HB-106-10 where an illegitimate son of the deceased had failed to challenge heirship of the widow to his father’s deceased estate timeously.  At page 6 to 7 of the cyclostyled judgment, MATHONSI J (as he then was) held as follows:</p> <p> </p> <p>“<em>Having come to that conclusion it means that Georgina was entitled to have the house transferred to her name after the death of her husband and she did secure that transfer.  Coupled with this fact that Thwasile did not lodge a claim when the late William’s estate was dealt with and did not challenge the appointment of Georgina as heiress, his challenge has come rather late in the day”.</em></p> <p> </p> <p>            On the facts of this matter this third preliminary objection is meritorious.  I would uphold the objection and find that the applicant’s claims have become prescribed.</p> <p><strong>Disposition</strong></p> <p>            The applicant certainly has no <em>locus standi</em> at law.  She is not an executrix in the estate of her late husband. She had no legal interest in the matter.  She may not make a claim on behalf of the estate of the deceased who himself failed to exercise his rights if any, when he was still alive.  There are material disputes of facts which are not capable of resolution without hearing evidence.  Applicant chose the wrong preclude.  The claims are evidently prescribed by operation of law.</p> <p>In the result the preliminary points are upheld, the application is hereby dismissed with costs.</p> <p><em>Webb, Low &amp; Barry</em> applicant’s legal practitioners</p> <p><em>Ndlovu, Dube &amp; Associates</em>, 1st respondent’s legal practitioners</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/bulawayo-high-court/2021/51/2021-zwbhc-51.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24349">2021-zwbhc-51.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/bulawayo-high-court/2021/51/2021-zwbhc-51.pdf" type="application/pdf; length=527756">2021-zwbhc-51.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/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/executoradministrator-deceaseds-estate">Executor/Administrator of deceased&#039;s estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claims-made-behalf-estate">claims made on behalf of estate</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/locus-standi-0">Locus standi</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/period-prescription">Period of prescription</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/supreme-court-zimbabwe/2004/23">Matambanadzo v Goven (68/02) ((68/02)) [2004] ZWSC 23 (09 May 2004);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2005/29-0">James and Others v Sikariyoti and Others ( SC29/05 ) [2005] ZWSC 29 (05 September 2005);</a></div><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2010/106">Ngwenya V Hlabangana and Another (Case No. HC 258/08) [2010] ZWBHC 106 (22 September 2010);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1929/12">Administration of Estates Act [Chapter 6:01]</a></div></div></div> Thu, 01 Apr 2021 08:48:44 +0000 Sandra 9989 at https://old.zimlii.org Maranatha Ferrochrome (Private) Limited v RioZim Limited (HH 482-20, HC 6774/18) [2020] ZWHHC 482 (23 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/482-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MARANATHA FERROCHROME (PRIVATE) LIMITED  </p> <p>versus</p> <p>RIOZIM LIMITED</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 8, 22 &amp; 23 June 2020</p> <p> </p> <p><strong>Civil trial – absolution from the instance</strong></p> <p> </p> <p>Date of written judgment: 22 July 2020</p> <p> </p> <p> </p> <p><em>Adv F. Girach</em>, for the plaintiff</p> <p><em>Adv T. Zhuwarara</em><em>, </em>for the defendant</p> <p> </p> <p>MAFUSIRE J</p> <p>[1]       This is a civil trial. The defendant applies for absolution from the instance at the close of the plaintiff’s case. The plaintiff’s case against the defendant is for payment of a sum of money. The main claim is for USD450 000-00, alleged to be the replacement cost of an immovable property, and the improvements thereon, previously occupied by the plaintiff, but intentionally destroyed by the defendant. The alternative claim is for USD 143 588-22, allegedly for unjust enrichment.</p> <p>[2]       The plaintiff’s claim stems from a relationship, or association between the parties that had endured for fourteen years but had eventually dissipated. Ultimately it degenerated into a legal confrontation that is this case. I am told there is one other case. The facts of this case are these. The plaintiff and the defendant are duly registered companies in Zimbabwe. The defendant was formerly known as Rio Tinto Zimbabwe Limited. From the evidence so far, both parties are involved in mining or mining related activities. At all relevant times, the defendant was the owner of certain land in the Eiffel Flats area of Kadoma. On three sites it had put up several buildings for various uses. The one site was 3 856 m2 in extent. On it the defendant had built a block of offices. They were identified as the Rio Tinto Main Office. The second site was 5 144 m2 in extent. On it the defendant had put up an engineering block. It was identified as the Rio Tinto Old Engineering Block. The last site was 2 328 m2 in extent. On it the defendant had built another block of offices. It was identified as the Rio Tinto Old Accounts Office. The total area covered by these three sites was 11 328 m2.</p> <p>[3]       By a written agreement dated 3 June 2003 the defendant sold to the plaintiff these three sites as three separate subdivisions. The purchase prices were $42 278 000-00 for the first site; $52 429 000-00 for the second, and $23 174 000-00 for the last. The total purchase price was $117 881 000-00. This was in the then Zimbabwean currency. The plaintiff had paid it all off in accordance with the terms of the agreement.</p> <p>[4]       The defendant says there had been no proper subdivisions done to the land which could legally be sold as separate subdivisions. In the agreement of sale, each of the sites was described as “<em>A surveyed stand yet to be allocated a number, being a subdivision of Chemukute Township Lot 1 of Railway Farm 11 located on Eiffel Flats Road, Eiffel Flats …</em>”</p> <p>[5]       Prior to the formal sale agreement aforesaid, the plaintiff was already in occupation on a leasehold basis. The lease terminated upon payment of the full purchase price. In the area, the defendant does open cast mining. Its operations were expanding. In 2014 the parties entered into an agreement in terms of which the defendant leased back from the plaintiff some of the offices for a nominal rent. But the defendant could not pass transfer in terms of the sale agreement. Concomitantly, the plaintiff could not get title. A dispute arose.</p> <p>[6]       Matters came to a head in about 2016. The defendant’s open pit mining operations continued to expand. Transfer of the sites could not be passed. The parties engaged. Discussions centred on a number of options. As I have understood the evidence so far, one option was for the defendant to refund the purchase price paid by the plaintiff in an amount that would take into account, <em>inter alia</em>, the fact that the country had transformed into a multi-currency economy (following the demise of the local currency in 2009). Another option seemed to be that the defendant could simply buy back the sites. Yet another option seemed to be that the defendant could offer the plaintiff alternative sites on which it would construct similar structures for the plaintiff.</p> <p>[7]       Negotiations seemed protracted. There were several draft agreements produced by both parties with offers and counter-offers. Unfortunately, nothing was concluded. According to the plaintiff’s evidence, relations between the parties were completely shattered in February 2017 when the defendant, without warning, sent in its heavy-duty equipment comprising excavators, front-end loaders, dump trucks and the like, and started demolishing the buildings. The plaintiff’s staff on the ground raised an alarm. Its head office personnel in Harare engaged the defendant’s personnel. Nothing helped. The demolitions continued. The plaintiff’s staff on the ground was instructed to salvage such of the goods and materials as had been stored inside the buildings to avert any possible losses.</p> <p>[8]       In July 2018 the plaintiff issued a summons against the defendant claiming the sums of money aforesaid. The declaration refers to the 2003 sale agreement; the payment of the purchase price; the defendant’s failure to pass transfer; the forceful eviction of the plaintiff from the sites and its acceptance of the cancellation of the agreement. The amount of USD 450 000-00 is said to be the replacement cost of substitute buildings. The alternative claim for USD143 582-22 for unjust enrichment is said to be today’s equivalent of the purchase price paid by the plaintiff in 2003, calculated using the official exchange rate prevailing at the time.</p> <p>[9]       In its plea, the defendant has defended the plaintiff’s claim on the basis that the 2003 sale agreement was invalid and therefore unenforceable in that it was concluded in contravention of s 39(1) of the Regional, Town and Country Planning Act [<em>Chapter 29:12</em>], more particularly in that the three pieces of land in question had purportedly been sold without a subdivision permit. The defendant also defends the plaintiff’s claim on the basis that when the parties realised that the 2003 sale agreement was illegal, and could therefore not be consummated, they entered into another agreement whereby the old agreement would stand cancelled; the plaintiff would move off the sites, and the defendant would pay it an amount in the sum of USD 135 000-00 in full and final settlement of the parties’ rights and obligations towards each other in terms of the old sale agreement.  In the alternative, the defendant pleads that the plaintiff’s claims have become prescribed.</p> <p>[10]     In its amended plea, the defendant pleads that the claim by the plaintiff to be put back into the position that it would have been in had the allegedly illegal contract been performed, is not cognisable at law. It also pleads that the plaintiff lays no basis for denominating its claim in United States dollars and that, at any rate, the claim takes no account of the fact that the plaintiff was in occupation of the sites for well over a decade without paying any consideration or compensation.</p> <p>[11]     The plaintiff closed its case after leading evidence from three witnesses, namely:</p> <ul> <li>George Tichaona Mushawatu (“<strong><em>George</em></strong>”): From 2010 he was the plaintiff’s managing director. His evidence deals with the relationship between the parties before, during and after the agreement of sale; the lease agreement; the inconclusive negotiations to salvage some alternative form of relationship between the parties; the demolitions of the buildings without warning, and the quantum of the claims.</li> </ul> <p> </p> <ul> <li>Nikita Masaya: He is a registered estate agent. He was the one who, at the instance of the plaintiff, evaluated the three sites in question and the improvements thereon and prepared a report upon which the plaintiff’s claim for USD450 000-00 is predicated. He says he personally inspected the buildings and the sites and came up with three sets of values, namely USD330 000-00, being the estimated market value; USD450 000-00, being the gross replacement value, and USD215 000-00, being the depreciated replacement cost. He concedes he did not measure or survey the land on which the buildings had been situated, or examine the title deed description of the land.</li> </ul> <p> </p> <ul> <li>Tom Usupu: At all material times he was the plaintiff’s human resources manager stationed at the Eiffel Flats operations. He, together with the other members of staff for the plaintiff, witnessed the surprise demolitions of the buildings by the defendant. They made arrangements to salvage the plaintiff’s goods and materials.</li> </ul> <p>[12]     In its application for absolution from the instance, the defendant, in summary, argues that the 2003 sale agreement was <em>in fraudem legis</em>. It is unenforceable. No rights derive from it. The plaintiff is claiming the value or cost of a substitute building. In so doing, it is seeking to be placed in the same position that it would have been in had that agreement been performed. This position is in breach of the <em>ex turpi causa</em> rule. This rule admits of no exception. An illegal agreement is unenforceable. That is the end of the matter. At any rate, the plaintiff cannot found a claim on the basis of the destruction of the buildings. They belonged to the defendant. The Plaintiff never got title of the land. Thus, the defendant actually destroyed its own property. Nor can the plaintiff’s alternative claim for unjust enrichment be sustained. It is prescribed. The plaintiff paid the purchase price for the three sites in 2003. It immediately became entitled to transfer. That the agreement of sale was illegal appeared <em>ex facie</em> the document. It is immaterial that the plaintiff might have become aware of the illegality only much later. The <em>in pari delictum</em> rule does not apply.</p> <p>[13]     The plaintiff has opposed the claim for absolution from the instance. In summary, it says none of its witnesses, (evidently and primarily George), has admitted that the 2003 sale agreement was illegal. Even in its pleadings, the plaintiff challenges this assertion. It is the defendant which alleges an illegality on the basis of an alleged contravention of s 39 of the Regional Town and Country Planning Act. The onus to prove this purported illegality is on the defendant. It must call evidence. Furthermore, the defendant’s case in the plea is not that by reason of this alleged illegality the plaintiff is entitled to nothing. Rather, it is that the 2003 sale agreement was superseded by another agreement, an exit agreement, in terms of which the defendant would pay US$135 000-00 in full and final settlement of any of its obligations towards the plaintiff and in consideration of the plaintiff moving out of the premises to pave way for the defendant’s occupation. The <em>in pari delicto</em> rule applies. This is an appropriate case to call for its relaxation in order to do justice between the parties by ordering restitution of the purchase price paid by the plaintiff. On prescription, the defendant has not taken account of the exceptions in the Prescription Act [Chapter 8:11]. Section 16 sets out when prescription begins to run. A creditor must be aware of all the facts from which the debt arises. In this case both parties at all times proceeded on the basis that the plaintiff had become the owner of the property. In this regard, in 2014 the defendant even went on to lease a portion of the property from the plaintiff.</p> <p>[14]     Here now is my ruling. An application for absolution from the instance made by one party, for instance, the defendant, at the close of the case for the other party, i.e. the plaintiff, is a procedure designed to bring a speedy end to the proceedings where there is no evidence warranting the defendant going into its own case. To succeed, the defendant must show that the plaintiff has not established such facts as are supportive of his cause: see <em>Corbridge v Welch</em> (1892) 9 SC 277, or adduced such evidence as to warrant him taking the witness’ stand so as to rebut the plaintiff’s case, or to put across his own case. At this stage the plaintiff’s evidence must be assumed to be true unless very special circumstances exist, such as the inherent improbability of the evidence.</p> <p>[15]     Granting absolution from the instance is not the same thing as granting judgment for the defendant. The court is simply absolving or relieving the defendant of the burden of the plaintiff’s case so that he or she does not have to deal with his or her own. Absolution does not decide the matter finally. The plaintiff can go away and still bring back the same case next time but with better evidence.  </p> <p>[16]     In considering an application for absolution from the instance at the close of the plaintiff’s case, the onus on the defendant to persuade the court, manifestly to make short work of the plaintiff’s case, is much heavier. At this stage, the application is being made when only half the case has been heard. But comparatively, the onus is lighter if the application is made after all the evidence has been led, i.e. at the end of the entire case. The court uses different legal calipers or scales to measure or weigh the cogency of the evidence at these different stages. At the close of the plaintiff’s case, the enquiry is: what judgment <strong><em>might</em></strong> the court give? But at the end of the whole case the enquiry is: what judgment <strong><em>ought</em></strong> the court give? This implies that with “<strong><em>might</em></strong>” the judgment could well be mistaken, and therefore incorrect. But with “<strong><em>ought</em></strong>” the judgment could not be mistaken. It is the correct one: see <em>Supreme Service Station [1969] (Pvt) Ltd </em>v<em> Fox and Goodridge (Pvt) Ltd </em>1971 (1) RLR 1.</p> <p>[17]     The difference between <strong><em>might</em></strong> and <strong><em>ought</em></strong> is the difference between a <em>prima facie </em>case and a case on a balance of probabilities. In other words, at the close of the plaintiff’s case, all that the court looks at is whether the plaintiff’s evidence makes out such a <em>prima facie</em> case as to warrant the defendant taking the witness’ stand. But at the close of the whole case, the court looks at whether the plaintiff has made out such a case on a balance of probabilities as to warrant judgment in its favour. There is a glut of cases on the point. The following are just a sample: <em>Gascoyne </em>v<em> Paul and Hunter</em> 1917 TPD 170; <em>Claude Neon Lights (SA) Ltd </em>v<em> Daniel</em> 1976 (4) SA 403 (A); <em>Gordon Lloyd Page &amp; Associates </em>v<em> Rivera</em> 2001 (1) SA 88 (SCA); <em>Supreme Service Station [1969] (Pvt) Ltd, supra, </em>and <em>Standard Chartered Finance Zimbabwe Ltd </em>v<em> Georgias &amp; Anor</em> 1998 (2) ZLR 547 (H) and <em>Bailey NO </em>v <em>Trinity Engineering (Pvt) Ltd &amp; Ors</em> 2002 (2) ZLR 484 (H).</p> <p>[18]     Courts are chary of granting absolution at the close of the plaintiff’s case. They are loath to decide upon questions of fact without hearing all the evidence. As was pointed out in the <em>Supreme Service Station [1969]</em> case above, the practice in South Africa and in this jurisdiction has always been that, in case of doubt as to what a reasonable court <strong><em>might</em></strong> do, a judicial officer should always lean on the side of allowing the case to proceed. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance.</p> <p>[19]     In this case, the defendant says the illegality of the 2003 sale agreement appears <em>ex facie</em> the document itself, i.e. the document identified in evidence as the “Broker’s Note”. But I do no think so. All that there is on that document, in relation to the three sites, is, as I have already highlighted above, a reference to “… <em>a surveyed stand yet to be allocated a number</em> …” This cannot be sufficient information to anyone that there was no sub-division permit.</p> <p>[20]     In its replication, the plaintiff denies that transfer could not be registered by reason of the fact that the property had not been subdivided. It avers that both parties believed at the time that the defendant was capable of passing transfer. George says much the same thing in his evidence. It is common cause that as late as 2014, the parties agreed to a lease. The defendant was the lessee or tenant. The plaintiff was the lessor or owner. Only on 4 March 2016, through a letter to George, penned by one Noah Matimba as Chief Executive, does the defendant, quite obliquely for that matter, broach the subject of the absence of a proper subdivision in relation to the three sites. In part the letter reads:</p> <p>“The above mentioned properties were subject to an Agreement of Sale entered into between Rio Tinto Zimbabwe Limited (now RioZim Limited) and Maranatha Ferrochrome (Private) Limited on 3 June 2003. It is common cause however that the properties were never assigned stand numbers of separate title and therefore despite the sale of the properties, transfer of the properties to Maranatha has not occurred.”</p> <p>[21]     That letter was in the context of an attempt to find common ground on the way forward, given the defendant’s expansion programme and its desire for more land. In his reply, George expresses dismay at the absence of a meaningful offer. On the question of a non-existent subdivision permit, he says:</p> <p>“The issues regarding the delayed transfer have been subject of previous discussions between the Legal Counsel of Gurta AG / Maranatha Ferrochrome (Private) Limited and your good offices. I would therefore prefer to leave issues on the legal implications of the delayed transfer to the legal teams.”</p> <p>[22]     Thus, that the 2003 sale agreement might have been a legal nullity does not appear either <em>ex facie</em> the documents, or from the plaintiff’s evidence. I agree with the plaintiff’s position that it is up to the defendant to lead evidence on these aspects. It is only after all the evidence has been led that the court can assess and consider the applicability or otherwise of the principles <em>ex turpi causa</em> and <em>in pari delicto</em> in relation to s 39(1) of the Regional, Town and Country Planning Act.</p> <p>[23]     The relevant portions of s 39(1) of the Regional, Town and Country Planning Act read:</p> <p>“<strong>39       No subdivision or consolidation without permit</strong></p> <p> </p> <ol> <li>“… …[N]o person shall –</li> </ol> <p>           </p> <p>(a)        subdivide any property; or</p> <p>           </p> <p>(b)        … … … … … … … …</p> <p> </p> <p>except in accordance with a permit granted in terms of section forty … …”</p> <p> </p> <p>[24]     In <em>X-Trend – A – Home </em>v<em> Hoselaw Investments</em> 2000 (2) ZLR 348 (S) the Supreme Court interpreted s 39 above to mean that what is prohibited is the agreement itself that may lead to a change of ownership of any portion of a property, irrespective of the time of signing that agreement. So, if parties enter into an agreement to buy and sell a portion of land which is part of a whole but without a subdivision permit, that agreement will be patently illegal. It is unenforceable. No rights or obligations derive from it. A court of law will not associate itself with, or relate to such an agreement. It is tough luck if one of the parties suffers loss by reason of anything done, or not done, in terms of that agreement, e.g. if the seller has already parted with possession of the property before the purchase price has been paid and now wants the property back, or conversely, if the purchaser has already paid the purchase price before taking transfer and now wants his or her money back. It is such an agreement as will be affected by the <em>ex turpi causa</em> and <em>in pari delicto</em> principles.</p> <p>[25]     The maxim <em>ex turpi causa non oritur actio</em> means “<strong>no action arises from an immoral cause</strong>”: see <em>Dube </em>v<em> Khumalo</em> 1982 (2) ZLR 103 (S), at 109D – F, and <em>Mega Pak Zimbabwe (Pvt) </em>v<em> Global Technologies Central Africa (Pvt) Ltd </em>2008 (2) ZLR 195. It is a rule absolute. It admits of no exception. Explaining the rationale for this rule, MAKARAU JP, as she then was, in the <em>Mega Pak Zimbabwe</em> case above, said<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>:</p> <p>“In my view, the general principle expressed in the maxim does not permit litigants to bring their ‘dirty’ transactions into the clean halls of justice. Justice will not soil its hands by touching such transactions. ‘Dirty’ in this regard not only refers to immoral transactions, contracts specifically prohibited by law but also includes transactions that seek to defeat the law.”</p> <p>In `<em>Jajbhay </em>v<em> Cassim</em> 1939 AD 537, at p 551, and quoting from <em>Collins </em>v<em> Blantern</em> [2 Wilson, 347] [1767], reference was made to “…<em> no polluted hand shall touch the pure fountains of justice.</em>”</p> <p>[26]     On the other hand, the <em>in pari delicto </em>principle [“<em>in pari delicto est conditio possidentis</em>”], in its classical form, says that in case of equal guilt, the loss stays where it falls; he who is in possession prevails: see <em>Schierhout </em>v<em> Minister of Justice</em> 1926 AD 99: <em>Dube </em>v<em> Khumalo</em>, <em>supra</em>; <em>Matsika </em>v<em> Jumvea Zimbabwe (Pvt) Ltd</em> 2003 (1) ZLR 71 (H) and <em>Gambiza </em>v<em> Taziva </em>2008 (2) ZLR 107 (H). The rationale is to discourage illegality by denying judicial assistance to persons who part with money, goods or incorporeal rights in furtherance of an illegal transaction: <em>Schierhout v Minister of Justice, supra</em>. But this principle is not as inflexible as the <em>ex turpi causa</em> doctrine.</p> <p>[27]     In <em>Honeycomb Hill (Pvt) Ltd </em>v<em> Herentals College (Pvt) Ltd</em> HH 265-16 (<em>unreported</em>) I said the <em>ex turpi causa</em> and <em>in pari delicto</em> doctrines seem to be cognates but that they are distinct. Whilst <em>ex turpi causa</em> is inflexible and admits of no exception, <em>in pari delictum</em> is flexible and is subject to exceptions, especially those grounded in public policy. In a nutshell, <em>ex turpi causa</em> prohibits the enforcement of immoral or illegal contracts. <em>In pari delictum </em>curtails the rights of the delinquents or offenders to avoid the consequences of their performance, or part performance of such contracts (per STRATFORD CJ in <em>Jajbhay </em>v<em> Cassim</em>, <em>supra</em>, at p 540 – 541).  In <em>Dube’s</em> case above, GUBBAY JA, as he then was, confirming the position that in suitable cases the courts will relax the <em>in pari delictum</em> rule, said that this is done “<em>…[to do] simple justice between man and man</em>” (also <em>Jajbhay</em>, <em>supra</em>, at p 544).</p> <p>[28]     <em>In casu</em>, I have already concluded that neither do the plaintiff’s pleadings nor its evidence show or admit that the 2003 sale agreement was a legal nullity, let alone that this was the view of either or both of the parties at any stage prior to the trial. As the plaintiff argues, the defendant does not, in its plea, take the view that the plaintiff is entitled to nothing. Its defence is essentially a confession and an avoidance. It relies on some exit agreement. It is the defendant saying the 2003 sale agreement is a legal nullity. Therefore, it is upon it to lead evidence. Absolution from the instance is not available to it at this stage. The plaintiff has laid out such a <em>prima facie</em> case as to warrant the defendant taking the witness’ stand.</p> <p>[29]     Furthermore, in view of the fact that the plaintiff had performed its side of the bargain by paying the full purchase price in terms of the agreement, but has not got the property, it would seem so unjust, on the face of it, to send it away empty-handed. Even if the defendant eventually succeeds in showing an illegality, it seems to me to be obliged to go further and show why the plaintiff cannot invoke the <em>in pari delictum</em> principle to recover the purchase price, despite the invalidity or unenforceability of their original agreement. It is the defendant, which, according to the evidence so far, unilaterally cancelled the 2003 sale agreement and, without any prior warning, went on to demolish the buildings that the plaintiff had occupied for fourteen years.  The question of prescription upon which the defendant relies to defeat the plaintiff’s alternative claim for unjust enrichment, is not clear cut on the papers, or from the evidence so far. It seems that up until the defendant’s actions above, both parties were treating the 2003 agreement as being valid, with all the attendant rights and obligations.   </p> <p>[30]     In all the circumstances therefore, the defendant’s application for absolution from the instance at the close of the plaintiff’s case is hereby dismissed. The costs shall be in the cause. The trial shall resume on a date, or dates, to be agreed upon by the parties in consultation with the Registrar.</p> <p> </p> <p>22 July 2020</p> <p> </p> <p><em>Kantor &amp; Immerman,</em> plaintiff’s legal practitioners</p> <p><em>Coghlan, Welsh &amp; Guest, </em>defendant’s legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> At p 197G – 198A</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/2020/482/2020-zwhhc-482_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=77281">2020-zwhhc-482.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/2020/482/2020-zwhhc-482_0.pdf" type="application/pdf; length=291348">2020-zwhhc-482.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</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/absolution-instance-%E2%80%93-principles">Absolution from the instance – principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-made-respect-ancillary-matter">application made in respect of ancillary matter</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court-should-lean-favour-case-continuing">court should lean in favour of case continuing</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</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/2016/265">Honeycomb Hill (Pvt) Ltd. v Herentals College (Pvt) Ltd. (HH 265-16 HC 366/14) [2016] ZWHHC 265 (27 April 2016);</a></div></div></div> Mon, 19 Oct 2020 13:28:18 +0000 Sandra 9878 at https://old.zimlii.org TL v ZIMRA (HH 413-20, ITC 2/19) [2020] ZWHHC 413 (22 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/413 <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>TL</p> <p>versus</p> <p>ZIMBABWE REVENUE AUTHORITY</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>N.T. MTSHIYA, AJ</p> <p>HARARE; 1 June 2020 &amp; 22 June 2020</p> <p> </p> <p> </p> <p><strong>INCOME TAX APPEAL</strong></p> <p> </p> <p><em>M.P. Mahlangu, </em>for the appellant</p> <p><em>S. Bhebhe &amp; H. Muromba, </em>for the respondent</p> <p> </p> <p>MTSHIYA, AJ. This appeal seeks to determine whether or not it was proper for the respondent to disallow appellant’s technical and management fees for the tax periods 2010 to 2016 in the sum of $14 442 262.36. The answer lies in the further determination of the question whether or not the technical services were actually rendered and paid for.</p> <p><strong>The Facts</strong></p> <p>The appellant, TL, is a registered company with limited liability duly in cooperated under the laws of Zimbabwe.  TL carries on the business of milling, refining and selling sugar. It also sells by-products from sugarcane grown in the Lowveld of Zimbabwe.</p> <p>On 25 November 2009, TSCL the holding company of the appellant, and on behalf and for the benefit of the appellant, entered into a Technical Assistance Agreement with Tongaat Hullet Sugar Limited (Tongaat) a company incorporated in the Republic of South Africa. TL accepted the agreement made on its behalf and has always complied with all rights and obligations in terms of that technical agreement.</p> <p>The appellant has paid Tongaat all fees due for the technical assistance rendered to it and has paid the respondent the withholding tax as required by section 30 read with the seventeenth schedule of the Income Tax Act [<em>Chapter 23:06]</em> (ITA) on all such technical fees. The respondent has at all material terms accepted the withholding tax. </p> <p>On 31 May 2018, through a letter addressed to the appellant, the respondent raised amended assessments in respect of income tax for the years 2010, 2011, 2012, 2013, 2014, 2015 and 2016. </p> <p>On 11 June 2018 the respondent produced further amended assessments for the seven tax years between 2010 and 2016.</p> <p>The appellant avers that the amended assessments in respect of the years 2010 and 2011 were unlawful in that the right of the Respondent to issue such amended assessments for these years had prescribed in terms of proviso (ii) to s 47 (1) of the Income Tax Act.</p> <p> On 27 July 2018, the appellant objected to the amended assessments through their duly authorized agent.  The objection was filed outside the stipulated period as stated in section 62(1) of the Income Tax Act but the Respondent accepted the objection in terms of section 62(2) after being satisfied by the reasons of the delay in lodging the objection.</p> <p>On 19 November 2018 the legal practitioners, representing the appellant, duly lodged with the respondent a written notice of appeal to this Court.</p> <p>            The appellant states that between 7 April 2010 and 4 October 2016 technical representatives of the parent company visited TL to render technical assistance on the appellants’ operations.  Tongaat has been rendering services of a technical nature to TL since 25 November 2009, in accordance with the Technical Assistance Agreement.  All payments made to Tongaat were in terms of the said agreement and were also in compliance with the relevant legislation in Zimbabwe.</p> <p>It is the appellant’s   contention that all the seven amended assessments issued by the respondent did not specify the determination of taxable income and of credits to which the appellant was entitled to in terms of law.  Each of the seven amended assessments was issued as an additional assessment in terms of s 47 (1) (a) of the Income Tax Act and not as an estimated assessment in terms of s 45.</p> <p>The appellant goes on to point out that in each of the amended assessments, the figures attributable as technical fees had been assessed in a prior tax year in which the liability to pay was the following year.</p> <p> The appellant also argues that the respondent failed to apply the provisions of section 16 (1) (r) of the Income Tax Act in that the fees paid by the appellant to Tongaat were not incurred as expenditure on administration and management but on the provision of technical fees</p> <p>At the commencement of the hearing, the appellant applied for leave to introduce the issue of prescription. This issue had not been raised in the letter of objection. The respondent did not oppose the application. Leave to include the issue of prescription was therefore granted by consent.    </p> <p><strong>The issues</strong></p> <p>At the pre-trial hearing on 11 March 2020, the parties agreed that the court should determine the following issues:</p> <p>“1.       Whether or not the additional assessments for the tax years 2010 and 2011 issued by the Respondent are unlawful by reason of prescription.</p> <p>2.         Whether or not the additional assessments for the tax years 2010 to 2016 were in any event invalid on the basis and on the grounds set out by the Appellant in both the objection and the appellant’s case.</p> <p>3.        Whether or not Respondent erred in law in disallowing the deductions in respect of fees for technical services incurred by Appellant at all and in terms of s 16 (1) (r) of the Income Tax Act and further whether Respondent erred on the facts of the matter after applying the aforesaid sub-section 16(1)(r) to the deductions.</p> <p>4.         Whether or not, if a finding is made that the fees paid by the Appellant were in respect of administration or management services in terms of s 16 (1) (r) of the Income Tax Act, the Respondent erred in any event in not allowing such deductions to the level of at least 1% of the net income of the appellant.</p> <p>5.         Whether or not each of the original assessments for each of the relevant tax years that is to say 2010 to 2016 was made in terms of the practice generally prevailing at the time each of the assessments was made and therefore Respondent was by virtue of the proviso to s 47(1) of the Income Tax Act precluded from issuing additional assessments for those years.”</p> <p> </p> <p><strong>Evidence </strong></p> <p>The appellant led evidence from two witnesses. The first was Miss Tapiwa Florence Makoni who is empolyed by the appellant as its Human Resources Director and Company Secretary.  She is a Chartered Accountant by profession and joined the appellant on 1December 2014 as a Finance Training Manager.  She testified that she was familiar with the operations of the appellant and had the knowledge of the technical assistance that the appellant was getting from Tongaat. She was able to testify on the history and the need for such technical services to the appellant. She expressly mentioned that the technical services rendered excluded managerial and administrative fees. She said there was no need for these as these services were specifically provided by the expertise from within Zimbabwe.  She went on to explain the procedure followed for the technical fees to be paid. She said payment was made through the appellant’s bank, which in turn communicates with the Reserve Bank of Zimbabwe, for the necessary approvals.  She said the technical agreement is renewed annually with the approval of the Reserve Bank of Zimbabwe. She also explained that in order for the technical fees to be paid, audited statements and proof of the necessary withholding tax would have been remitted to the respondent before the Reserve Bank of Zimbabwe would approve any external payment.</p> <p> I found her to be a credible witness who knew the processes followed to fulfill the obligations under the Technical Assistance Agreement.</p> <p>The second witness who gave evidence for the appellant was Mrs Farmer, a tax expert and advisor to the appellant. She is a tax consultant and has vast experience in tax matters and is a former employee of the respondent.  She left the employee of the Respondent and worked for Price –Waterhouse Coopers where she left and partnered with one of the partners from Price-water House Coopers to open up her own private practice.  She is an examiner and marker for the qualifying examinations for the Chartered Institute of Secretaries Board in all tax modules.</p> <p> She testified that she prepared the letter of objection to the Commissioner on behalf of the appellant on the amended assessments.  She said the respondent had, upon its request, been furnished with a copy of the Technical Assistance Agreement which had been in force since 2009. She said the respondent had also been given the minutes of engagements of the consultants from Tongaat.  She also emphasized the point that the respondent never disputed any of the documents it was furnished with. </p> <p>Mrs Farmer also stated that the amended assessments were invalid due to certain deficiencies. She gave the 2013 tax year assessment as an example why the assessments were invalid. She pointed out the errors found in the assessments presented by the respondent.</p> <p>Mrs Farmer said in addition to the objection letter she prepared, she had also verbally and through emails engaged an officer of the respondent on the objectionable aspects of the additional assessments. The officer approached had conceded that the amended assessments did not make sense and required revision. That revision never came until the appeal hearing. She was adamant that although there was nothing in the record to confirm her approach to the respondent’s officer the conversation had actually taken place.</p> <p>She spoke confidently and with authority on the subject and the court is persuaded to accept her evidence in its entirety. The court has no reason to doubt the truthfulness of her evidence.</p> <p><strong>The Law and Consideration of Issues</strong></p> <p>I shall now proceed to look at each one of the issues agreed to by the parties for determination in this appeal.</p> <ol> <li><em>Whether or not the additional assessments for the tax years 2010 and 2011 issued by the Respondent are unlawful by reason of prescription.</em></li> </ol> <p>The answer to this question is to be found in section 47of the Income Tax Act, which section in full provides as follows:</p> <p>            “<strong>Additional assessments</strong></p> <ol> <li> If the Commissioner, having made an assessment on any taxpayer, later considers that –</li> </ol> <ol> <li>an amount of taxable income which should have been charged to tax has not been charged to tax; or</li> <li>in the determination of an assessed loss-</li> </ol> <ol> <li>an amount of income which should have been taken into account has not been taken into account; or</li> <li>an amount has been allowed as a deduction from income which should not have been allowed;</li> </ol> <p>    (c) any sum granted by way of a credit should not have been granted;</p> <p>he shall adjust such assessment so as to charge to tax such amount   of taxable income or to reduce such assessed loss or to withdraw or vary such credit, and if any tax is due either additionally, or alternatively, call upon the tax-payer to pay the correct amount of tax:</p> <p>             </p> <p>Provided that-</p> <ol> <li>no such adjustments or call upon the taxpayer shall be made if the assessment was made in accordance with the practice generally prevailing at the time the assessment was made;</li> <li>subject to proviso (i ), no such adjustment or call upon the taxpayer shall be made after six years from the end of the relevant year of assessment, unless the Commissioner is satisfied that the adjustment or call is necessary as a result of fraud, misrepresentation or willful non-disclosure of facts, in which case the adjustment or call may be made at any time thereafter;</li> <li> the powers conferred by this subsection shall not be construed so as to permit the Commissioner to vary any decision made by him in terms of subsection (4) of section <em>sixty-two</em>.</li> </ol> <ol> <li>Sections <em>forty-five</em> and <em>forty-six</em> shall apply to any assessments or to a call for the payment of any additional sum in respect of a credit made by the Commissioner under the powers conferred by subsection (1). “(My own underlining)”</li> </ol> <p> </p> <p>It is clear from the above provision of the law that the Commissioner has a right to re-open audits after the lapse of the six-year period however the Commissioner is not satisfied that the taxpayer’s returns disclose the correct amount or amounts for income tax purposes. However, in terms of (c) (ii) above, the Commissioner can only do that after he or she is satisfied that there is, on the part of the taxpayer, evidence of:  </p> <ol> <li>Fraud</li> <li>Misrepresentation</li> <li>Willful or non-disclosure of facts</li> </ol> <p>I am of the view that if the Commissioner has to re-open audits after the laps of the 6 years indicated under proviso (c) (ii) the Commissioner ought to prove that the tax payer has committed any one or all of the offences listed above. Obviously an allegation of such a nature would have to be placed before the tax payer for due process to take place.</p> <p>However, <em>in casu </em>  there is no evidence brought before me to show that the appellant was guilty of any of the offences listed in the act. There is also no evidence that the issue of misrepresentation captured in the respondent’s submissions was ever placed before the appellant and interrogated in terms of law. In terms of the evidence before this court, what was paced before the appellant is the following:</p> <p>“Please find attached the amended income tax assessments. The assessments have been issued in terms of s 47 (1) (a). The assessments are in respect of disallowed management and technical fees on your final accounts account which the expense were claimed on the basis of 2% of turnover which is not supported by invoices that are supposed to be issued by Tongaat Hullets Limted. The expenses have been disallowed pending production of actual expenditure incurred as provided for in s 15 (2) (a) of the income Tax Act [<em>Chapter 23.06</em>]. (My own underlining)</p> <p> </p> <p>Notwithstanding the production of the Technical Assistance Agreement, minutes of meetings with Tongaat consultants, audit certificates and evidence of approvals from the Reserve Bank of Zimbabwe, the respondents main concern was the production of invoices from Tongaat. The issue of misrepresentation was never raised. It could not be raised.</p> <p> In view of the foregoing, I do not find any reason for me to hold that the additional assessments for the tax years 2010 and 2011 issued by the respondent were valid. The respondent did not place any evidence before me to prove that the taxpayer was guilty of fraud, misrepresentation and willful or non-disclosure of facts and thus justifying re-audit after 6 years. There was no valid reason for the respondent to act outside the prescription period. Accordingly, the additional assessments did not enjoy the protection of law. They are invalid.</p> <ol> <li><em>Whether or not the additional assessments for the tax years 2010 to 2016 were in any event invalid on the basis and on the grounds set out by the Appellant in both the objection and the Appellant’s case.</em></li> </ol> <p>In order to answer this question there is need to understand and define what an assessment is.  According to section 2 of the Income Tax Act [<em>Chapter 23:06</em>] an assessment is defined as follows:</p> <p>“assessment” means—</p> <p>(<em>a</em>)        the determination of taxable income and of the credits to which a person is entitled in terms of the charging Act; or</p> <p>(<em>b</em>)        the determination of an assessed loss ranking for deduction;</p> <p>                        and includes a self-assessment in terms of section <em>thirty-seven A</em>.</p> <p>It is clear from the above definition that an assessment should reflect</p> <ol> <li>Taxable income</li> <li>Credits to which a person is entitled to</li> <li>An assessed loss ranking for deduction.</li> </ol> <p>Accordingly, in order for an assessment to be valid the above elements must be reflected and properly addressed. It is only when that is done that we can then have a proper income tax assessment in terms of the law.</p> <p>In <em>Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority </em>HH162/2004<strong>, </strong>where a similar issue arose<strong>, </strong>MAKONI J, as she then was, had this to say:</p> <p>“<em>on close scrutiny of Annexure “A” it is apparent that it does not show any taxable income or credits to which Applicant is entitled nor any assessed loss ranking for deductions.  Annexure “A” only reflects the sums due to the Respondent in the form of taxes, penalties and interest.</em></p> <p><em>It is imperative that an assessment contains the requirements of the Act as the administrative functions bestowed by the Act on the Commissioner amount to a determination which is executable through a garnishee</em>.  <em>He is also bestowed with the power to hear any objections in terms of the assessments made, after which he can insist on payment of the tax pending the determination of any dispute arising from an assessment.  The legislature could only have envisaged granting the Commissioner power to execute pending determination in circumstances where the tax payer been clearly advised of the basis for the assessment.”</em></p> <p> </p> <p>            I am in agreement with my sister Judge that the lumping up of figures as happened <em>in casu</em>   does not meet the requirements set out in section 2 of the Income Tax Act. It is incumbent on the part of the respondent to ensure that whatever information it gives to the tax payer can be properly understood and interpreted. The appellant’s right to correct information is paramount in these matters and to that end lumped up figures without any explanation become meaningless. <em>In casu</em> the appellant’s witness, Mrs Farmer, gave an example of an unchallenged discrepancy in the figures of technical fees where, in the audited financial statements for the year ended 31 March 2013 the amount was $4 022 170.00 but later appears as $2 983 800.00. This lives one wondering where such a discrepancy would have come from.</p> <p>I therefore hold that the additional assessments are not valid and should be set aside.</p> <ol> <li><em>Whether or not Respondent erred in law in disallowing the deductions in respect of fees for technical services incurred by Appellant at all and in terms of section 16(1)(r) of the Income Tax Act and further whether Respondent erred on the facts of the matter after applying the aforesaid sub-section 16 (1) (r) to the deductions.</em></li> </ol> <p>With respect to this issue, s 16 (1) (r) of the Income Tax Act provides as follows:</p> <p>(<em>r</em>)        in the case of expenditure incurred on fees, administration and management in favor of a company of which the taxpayer is an associated enterprise, or (where the company is a foreign company) the local branch—</p> <p>(i)         incurred prior to the commencement of trade or the production of income or during any period of non-production, any amount in excess of zero comma seventy-five per <em>centum </em>of the amount obtained by applying the following formula—</p> <p>A - (B + C)</p> <p>where—</p> <p>A represents the total expenditure qualifying for deduction in terms of section 15;</p> <p>B represents the expenditure on fees or administration and management paid outside Zimbabwe;</p> <p>C represents expenditure qualifying for deduction in terms of section 15 (2) (f) (i);</p> <p>(ii)  incurred after the commencement of trade or the production of income, any amount in excess of <em>per </em>centum of the amount obtained by applying the above formula.</p> <p>[Paragraph substituted by Act 2 of 2017]</p> <p>We have, <em>in casu,</em> a Technical Assistance Agreement as evidence, that there was indeed an agreement between the parties, where the appellant has an obligation to pay for a service. The technical services are clearly spelt out in the agreement and with respect to fees Clause 3 of the agreement states:</p> <p>“3. Triangle shall pay Tongaat a fee for the services provided in terms of this Agreement calculated at 2% of the gross annual turnover of TL for each financial year, which fee shall be paid in the following manner:</p> <ol> <li> </li> </ol> <p>(b) At the end of each financial year of Triangle and following upon production of the audited accounts of Triangle for that financial year, a calculation of the fee for the whole financial year shall be made and confirmed in an audit certificate by Triangle’s auditors.</p> <p>(c) Following upon production of the auditors’ certificate any adjustment of the fee paid monthly during the year shall be made and shall be taken into account, in the form of an addition or a deduction, as the case may be from future monthly payments of the fee.”</p> <p> </p> <p>The minutes of the meetings and schedules of the work done on the different site visits by Tongaat, were also brought before this court as evidence.  The appellant’s first witness Miss Makoni, went further to explain the need for expertise on their plants because their machinery was very old and the service providers were assisting in replacing the obsolete machinery in phases. </p> <p>Furthermore, in the objection letter of 27 July 2018, Miss Farmer made reference to a total of 24 visits undertaken by Tongaat to appellant’s sites. The visits were all minuted and addressed technical issues. That evidence was not challenged. Audited accounts of the appellant were also attached to buttress its point that technical services were indeed rendered and paid for. Once again that evidence was not challenged.</p> <p>It is also worth noting that the respondent has been recovering or receiving non-resident withholding tax from the appellant on the basis of the technical fees payments to Tongaat since 2010. The respondent then suddenly surfaces in 2017 stating that it was not convinced that the fees were indeed technical fees. This happens despites the fact that there is no change in the manner the appellant has been submitting its self-assessed income tax returns. There is no convincing explanation supporting the sudden change of approach on the part of the respondent. The appellant is entitled to know. </p> <p>It is also important to note that the Technical Assistance Agreement also enjoys the approval of the Reserve Bank of Zimbabwe. Miss Makoni told the Court that “each foreign payment to be made has to be done through the Reserve Bank of Zimbabwe, after certain procedures and checks have been verified.” I accept that payments to Tongaat were scrutinized by the Reserve Bank of Zimbabwe and were also audited by the appellant’s auditors. It cannot be denied that for the 7 years the audited accounts reflected the technical fees payable to Tongaat in terms of clause 3 of the Technical Assistance Agreement quoted at page 11 of this judgment. Furthermore, the yearly renewals took into account the true execution of the agreement as reflected in the audited accounts.</p> <p>In disagreeing with the appellant’s objection, the respondent then suggests that the expenditure that the appellant claims to be technical fees was expenditure actually incurred on management fees and general administration fees. It should be noted that the broad provisions of the Technical Assistance Agreement do not preclude Tongaat from offering expertise to the appellant in the fields of administration and management. That kind of expertise does not in any way take away the technical nature of the agreement. There would certainly be need for expertise in the administrative and managerial spheres for the effective execution of the contract. Accordingly, liaison between the contracting parties in relation to both administrative and management services cannot be ruled out. However, that liaison cannot, without evidence be taken to mean Tongaat was offering administrative and management services.</p> <p>All in all, I do not agree that, given the evidence that was placed before the respondent, it was necessary to insist on invoices from Tongaat. My finding, on a balance of probabilities, is that Tongaat indeed rendered technical services which services were paid for in terms of the agreement. These were technical fees. The respondent, in my view, therefore erred in law in disallowing deductions in respect of the technical fees.</p> <p>The finding that the fees were for technical services rendered, makes it unnecessary to proceed to deal with the 4th issue. This is so because the fees paid were not in respect of administration and management services offered by Tongaat. Tongaat did not offer those services. It rendered technical services for which it received technical fees from the appellant in terms of clause 3 of the Technical Assistance Agreement.</p> <ol> <li><em>Whether or not each of the original assessments for each of the relevant tax years that is to say 2010 to 2016 was made in terms of the practice generally prevailing at the time each of the assessments was made and therefore respondent was by virtue of the proviso to s 47 (1) of the Income Tax Act precluded from issuing additional assessments for those years.</em></li> </ol> <p>In addressing this issue, what the court has to determine is what was considered to be the practice generally prevailing and also the validity of the initial self-assessments, if they were lodged with the respondents in accordance with that practice.</p> <p>In <em>CIR </em>v <em>SA Mutual Unit Trust Management Co Ltd </em>1990 (4) SA 529 (A) at 536F-H</p> <p>CORBETT CJ said:</p> <p>“<em>a practice generally prevailing is one which is applied generally in the different offices of the Department in the assessment of taxpayers and in seeking to establish such a practice in regard to a particular aspect of tax assessment it would not be sufficient to show that the practice was applied in merely one or two offices.  Moreover, the word “practice” in this context means a habitual way or mode of acting.”</em> </p> <p> </p> <p>The existence of such a practice could be established by showing that the Commissioner or his representative had issued a directive to that effect. </p> <p>In this honorable court KUDYA J held in the case <em>DNS (Pvt) Ltd </em>v<em> Zimbabwe Revenue Authority </em>HH772/19 that:</p> <p><em>“The</em><em> appellant contended that at the time each self-assessment was filed there was a practice    generally prevailing of accepting deductions pertaining to provisions. The respondent disputed the existence of the practice post 1 January 2010. I have already held in a CUT (Pvt) Ltd </em>v<em> ZIMRA</em><em> HH 664/2019 at p 7 of the cyclostyled judgment that self-assessments are deemed to be assessments issued by the Commissioner. This is clear from the definition of an assessment set out in s 2 of the Income Tax Act and the clear and unambiguous wording of s 37A (11) of the same Act.  I, therefore, dismiss the alternative argument raised by </em>Mr<em> Magwaliba that a self-assessment falls outside the contemplation of s 47 (1) of the Income Tax Act.”</em></p> <p> </p> <p>The above case authorities give credence to the fact that there was a practice generally prevailing as at the time the appellant started executing the Technical Assistance Agreement. The respondent accepted taxes paid under that agreement. The income tax returns were based on an existing self-assessment system. There was no departure from that practice or system when the therefore of the view that the initial assessments from 2010 to 2016, having been presented in accordance with the practice generally prevailing at the time they were made, are valid. The respondent was therefore precluded from issuing additional assessments.</p> <p><strong>Dispositions</strong></p> <p>The respondent has failed to convince the court on the need for the appellant to be re-audited and have the initial assessments amended. The appeal has merit and should succeed.</p> <p> I therefore order as follows:</p> <ol> <li>The appeal succeeds.</li> <li>The amended assessments from 2010 to 2016 be and are hereby set aside.</li> <li>The initial self-assessment from 2010 to 2016 be and are hereby confirmed.</li> <li>Each party shall bear its own costs.</li> </ol> <p> </p> <p> </p> <p><em>Gill, Godloton&amp; Gerrans</em>, appellant legal practitioner</p> <p><em>Kantor &amp; Immerman</em>, respondent’s legal practitioners  </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/2020/413/2020-zwhhc-413.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=38108">2020-zwhhc-413.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/2020/413/2020-zwhhc-413.pdf" type="application/pdf; length=474548">2020-zwhhc-413.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/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/revenue-and-public-finance-see-also-customs-and-excise">REVENUE AND PUBLIC FINANCE See also CUSTOMS AND EXCISE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/income-tax">Income tax</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/income-income-tax">income (Income tax)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/taxable-income">taxable income</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/2004/162">Barclays Bank of Zimbabwe Limited v Zimbabwe Revenue Authority (HH 162-2004 ) [2004] ZWHHC 162 (21 September 2004);</a></div></div></div> Mon, 29 Jun 2020 10:41:46 +0000 Sandra 9726 at https://old.zimlii.org Zimbabwe Housing Company (Pvt) Ltd v Mandumbo & 8 Ors (HC 388-20, HC 1611/17 Ref Case HC 3122/17 HC 3123/17 HC 3124/17) [2020] ZWHHC 388 (11 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/388 <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> </p> <p>ZIMBABWE HOUSING COMPANY (PVT) LTD</p> <p>versus</p> <p>GABRIEL MANDOMBO</p> <p>and</p> <p>SHYLET JANYURE</p> <p>and</p> <p>TAKWANISA NHETE</p> <p>and</p> <p>EMMANUEL MARONGEDZA</p> <p>and</p> <p>FAITH TACHIONA</p> <p>and</p> <p>LACKSON CHISHAVA</p> <p>and</p> <p>YULITA EDNA MABVANURE</p> <p>and</p> <p>STEPHEN ZAMBA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>KWENDA J</p> <p>HARARE, 13 &amp; 24 September 2018; 30 October 2018; 7, 8, 9, 10 ,11, 23 January 2019; 2, 8, 25 February 2019 &amp; 11 June 2020.</p> <p> </p> <p> </p> <p><strong>Civil Trial</strong></p> <p> </p> <p><em>L T Mudziwepasi</em>, for the plaintiff</p> <p><em>T Nyamucherera</em>, for the 1st &amp; 2nd defendants</p> <p><em>T Chihuta</em>, for the 4th defendant</p> <p><em>V Masaiti</em>, for the 7th defendant</p> <p>3rd, 5th, 6th &amp; 8th defendants in default</p> <p> </p> <p> </p> <p>KWENDA J: <strong>Plaintiff’s claim in brief:</strong> The plaintiff is company duly registered in terms of the laws of Zimbabwe formed by one Collins Chinzou and his now deceased wife, Mrs Chinzou, as a trading vehicle for a family property business. The couple were the founding shareholders and directors of the plaintiff. Pursuant to the business the couple acquired a certain piece of land known as Lot 1 of Cranbrook of Galway Estate measuring 22,8254 hectares which they registered as the property of the applicant under Deed of Transfer no 2938/97 dated 5 May 1997. Thereafter, plaintiff subdivided 17,4169 hectares of the land into 180 stands for resale under permit no 26/96 dated 2 June 1997. Mrs Chinzou assumed the position of administrator with full control of virtually all plaintiff’s commercial activities which included servicing, sales, preparation of agreements of sale, reconciliation, approving cessions and management of staff.  She controlled the business up to the time of her death in 2009. Mrs Chinzou would on occasions invite the first defendant to assist her due to her failing health. In or around 2004 plaintiff offered the first defendant on a full time basis to assist Mrs Chinzou which he accepted.</p> <p>            Mrs Chinzou later passed away whereupon first defendant took over as the administrator thereby inheriting the wide discretionary powers previously exercised by Mrs Chinzou. For some reason Collins Chinzou reposed in the first defendant the same trust he had reposed in his wife and did not introduce any checks and balances except that agreements of sales would be placed before him to sign on behalf of the plaintiff.</p> <p>In or around 2017 or before plaintiff’s business was no longer viable. One Broadwell Chinzou, the couple’s son decided and did return from Botswana to help resuscitate the business. Plaintiff appointed him as its administrator. Meanwhile the plaintiff was placed under judicial management to save it from collapse. Broadwell Chinzou immediately commenced an extensive audit to verify the status of all stands, sales and payments. The audit unearthed some irregularities. [This trial was concerned with what plaintiff said were fraudulent disposals of stand nos 20755, 20462, 20563 and 20797]. Four suspicious agreements of sale purporting that second defendant had bought stand nos 20755, 20642 and 20797 and fifth defendant had bought stand 20563. The impugned agreements of sale and the receipts were subjected to forensic examination by a renowned Questioned Document Examiner and Forensic Scientist, LT Nhari, who concluded that they were fraudulent and that the first defendant had his footprints in the transactions.</p> <p>At the same time Broadwell Chinzou also uncovered that the first defendant had approved the substitution of third parties as purchasers. First defendant had processed the agreements of substitution on counterfeit letterheads which resembled the plaintiff’s template. [On the counterfeit agreements of substitution first defendant replaced plaintiff’s phone numbers with his and/or inserted plaintiff’s landline numbers which were no longer in use and inserted email addresses foreign to the plaintiff]. The cedents had taken occupation of the stands on the strength of letters authored by first defendant, ostensibly, on behalf of the plaintiff, giving the third parties rights of occupation and falsely confirming to the responsible local authority that plaintiff had received the full purchase price.</p> <p>The plaintiff now seeks confirmation by this court of the invalidity of the agreements of sale as well as the subsequent substitution of third parties as purchasers plus costs of suit. (hence case Numbers HC 1611/17 (stand 20755), HC 3122/17 (Stand 20742), HC 3123/17 (Stand 20563) &amp; HC 3124/17 (Stand 20797). It will be noted that throughout the pleadings the plaintiff erroneously referred to the transactions concluded by second and fifth defendants and the third parties as cessions when they were in fact combined cession and delegation in terms of which the third parties substituted the alleged original purchasers in the impugned agreements of sale. A cession is an act of transfer by which personal rights(claims) are transferred from one estate to another. It can even be done without the corporation or knowledge of the debtor. See <em>The Law of Cession, </em>2nd Ed by Susan Scott at page 7<em>. </em>See also<em> The Law of Contract in South Africa, </em>3rd Edition by RH Christie at page 515</p> <p>“Cession may be regarded as the opposite of delegation, as it involves the substitution of a new creditor (the cessionary) for the original creditor’</p> <p>See<em> R H Christie </em>at page 523</p> <p>“there is no single term of art to describe the process by which a third party, by agreement of all concerned, steps into the shoes of the one of the parties to a contract and replaces him entirely both as creditor and debtor……For lack of a single word our courts have variously described the process…”</p> <p> </p> <p><em>RH Christie</em> has among the various terms used by the Courts suggested preference of the terms ‘substitution of one party by another’ or ‘combined cession and delegation’. In this case the third parties did not only purport to take over personal rights but signed what were named acknowledgements in terms of which they accepted responsibility for future obligations arising from the agreements of sale. In some jurisdictions the combined process is called assignment.</p> <p><strong>First and second defendants’ defence in brief: </strong>First and second defendants are husband and wife who married in 2001. They filed joint pleas with respect to stand numbers 20755, 20642 and 20797. The pleas raised two preliminary issues which are, that the various plaintiff’s summons are fatally defective for failure to disclose a cause of action, alternatively the plaintiff’s claims had prescribed. On the merits they pleaded that the three agreements in which second defendant appears as purchaser were genuine and the second defendant had the right to assign the agreements of sale to third parties in the manner she did. They prayed for the dismissal of the claims, in some cases, with costs on the higher scale.</p> <p><strong>Third defendant: </strong>Third defendant who appears in plaintiff’s records as the cedent of stand number 20755 did not defend despite being served with plaintiff’s summons. Plaintiff moved for default judgment against him/her. I decided to delay judgment pending my resolution of the dispute between plaintiff and second defendant over the stand.</p> <p><strong>Fourth defendant’s defence in brief: </strong>The fourth defendant appears in plaintiff’s records as the cedent of stand no 20642. He defended the matter. He pleaded that since he acquired rights from second defendant, the fate thereof was dependant on how the court resolves the dispute between plaintiff and second defendant over the stand in question. He filed a counterclaim in which he said in the event that the court resolved the dispute against second defendant he would pray for reimbursement. The fourth defendant’s counter-claim, as initially drafted presented, was vague in terms of who was supposed to reimburse him. The counterclaim was amended at the pre-trial conference and after the amendments approved and signed for by the presiding judge it was clear that the trimmed counterclaim was now targeting the plaintiff presumably as a claim based on unjust enrichment arising from the improvements which fourth defendant had made at the stand. Fourth defendant changed the whole import of the counterclaim when he amended the counterclaim on the 28th February 2018 to read as follows: -</p> <p>“Should this honourable court find in favour of the plaintiff, the 1st and 2nd</p> <p>defendants be ordered to reimburse the 3rd defendant the amount paid for the stand and developments thereon to the tune of $40 000.00.”</p> <p> </p> <p>However, the fourth defendant abandoned the counterclaim at the commencement of the trial after conceding that the High Court Rules 1971 as amended did not provide for a counterclaim against (a) co-defendants. During the trial, the fourth defendant somehow sought to introduce a new defence of estoppel which he had not pleaded at all. The thrust of the cross-examination on behalf of the fourth defendant was that the fourth defendant was an innocent purchaser and the operation of estoppel prevented the plaintiff from disputing the assignment of the agreement of sale by second to fourth defendant. His counsel put it to plaintiff’s witnesses that plaintiff was barred from vindicating the property because it had approved the cession of rights to him and had gone as far as writing a letter to the Ruwa Local Board confirming fourth defendant’s rights over the stand. Plaintiff had therefore created the impression that all was in order and fourth had acted upon the representation to his prejudice. Fourth defendant persisted with the argument in closing submissions made on his behalf at the end of the trial. The procedural correctness of that approach and availability to him of the defence of estoppel are issues discussed later in this judgment. Fourth defendant also prayed for the dismissal of plaintiff’s claim.</p> <p><strong>Eighth defendant: </strong>The eighth defendant who appears in plaintiff’s records as the cedent of stand no 20797, was also served with plaintiff’s summons but failed to defend. Plaintiff prayed for judgment against him but the court deferred its ruling to the end of the trial because the second defendant that she had properly acquired and validly ceded rights in the stand to eighth defendant.</p> <p><strong>Fifth and sixth defendants: </strong>Fifth and sixth defendants appear in plaintiff’s records as purchaser and first cedent of stand no 20563. The impugned records reveal that sixth defendant in turn ceded the stand to seventh defendant. Fifth and sixth defendants were served with summons but did not defend this case. Plaintiff prayed for judgment against them but, once again, I withheld judgment pending the court’s determination on the defence of estoppel raised by seventh defendant.</p> <p><strong>Seventh defendant’s defence in brief:</strong> The seventh defendant filed her plea as a self-actor. Her thrust was that the plaintiff was barred from contesting her right to the stand because it had presided over the assignment of the agreement of sale to her by the sixth defendant. She too claimed that although the default of the fifth and sixth defendants had left a gap/ no obvious link between the plaintiff and her, plaintiff was barred from vindicating stand no 20563 because it had approved cession of rights to her by sixth defendant and had written a letter to the Ruwa Local Board confirming her rights over the property. She, too, prayed for the dismissal of plaintiff’s claim against her. Mr <em>Masaiti</em> assumed agency and represented seventh defendant at the trial.</p> <p>The parties agreed to consolidate the four cases for the purposes of trial whereupon I issued an order to that effect by consent and numbered the defendants (one) to (eight).</p> <p> </p> <p> </p> <p><strong>PLEADINGS IN DETAIL</strong></p> <p>The above introduction is an overview of the cases. What follows is a detailed exposition of the pleadings for a keen reader.</p> <p><em>Case HC 1611/17 [Stand 20755 Cranbrook Park Ruwa</em></p> <p>            Plaintiff alleged the following:</p> <p>            It is the registered owner of stand No. 20755 Cranbrook Park, Ruwa held by it as a portion of Lot 1 of Cranbrook of Galway Estate as aforementioned. The defendants are Gabrial Mandombo, Shylet Janyure and Takwanisa Nhete (first, second and third defendants respectively). An audit carried out by plaintiff in 2017 led to the discovery of a forged agreement creating the false impression that plaintiff had sold stand 20755 Cranbrook Park, Ruwa to second defendant (his wife) on 9 October 2002 at a price of ZWL$800 000. There was also, on file, a cessionary agreement in terms of which second defendant purported to cede the stand to third defendant on 4 March 2012. The plaintiff averred that first defendant had participated in the creation of the false sale and cessionary agreements. The exact dates on which the allegedly sham sale agreements were not known to the plaintiff because there was evidence that the sale agreement had been backdated by altering the year 2005 to read 2002. The plaintiff pointed out certain questionable features of the sale and cessionary agreements which it said are evidence of the fraud. These will be discussed in detail under evidence. The plaintiff prayed for an order confirming that both the purported sale of stand No. 20755 Cranbrook, Ruwa to second defendant and the subsequent cession to third defendant were null and void. It prayed for costs of suit against the defendants jointly and severally, one paying, the others to be absolved.</p> <p>First and second defendants who were both represented by Mr T <em>Nyamucherera</em>. pleaded as follows: -</p> <p>They filed a joint plea wherein they raised, as a preliminary issue, that plaintiff’s summons is defective in that it does ‘not contain a true and concise statement of the nature, extent and grounds of the cause of action’. They also pleaded prescription as a point <em>in limine. </em>They averred that the plaintiff’s claim based on the agreement of sale dated 9 October 2002 had become prescribed on the 9 October 2005 and a claim based on cessionary agreement dated 14 March 2012 had prescribed on 14 March 2015. Ordinarily prescription is put forward as a special plea. First and second defendants failed to do so leaving the court to deal with it as an issue at the trial. On the merits first and second defendants pleaded that second defendant’s agreement of sale is valid and such first defendant had validly acquired rights and interest in the stand no 20755. They put the plaintiff to the proof of its allegations. According to them, the agreement was genuine and had been properly executed with the knowledge of late Mrs Chinzou who was one of plaintiff’s directors in the year 2002. The defendants asserted that the agreement in terms of which third defendant as the purchaser of stand 20755 is valid and competent since it was based on an earlier valid agreement of sale. The defendants prayed for the dismissal of plaintiff’s claim with costs.</p> <p>            The plaintiff replicated that it had only become aware of the fraud after an audit. It maintained that the summons discloses a cause of action as amplified by the declaration.</p> <p>            Third defendant was duly served with summons on the 3rd May 2017 but failed to defend. </p> <p><em>Case HC 3122/17 [Stand 20642 Cranbrook Park Ruwa]</em></p> <p>            Plaintiff claimed as follows: -</p> <p>It is the registered owner of No. 20642 Cranbrook Park, Ruwa held by it as a portion of Lot 1 of Cranbrook of Galway Estate. The defendants are Gabrial Mandombo, Shylet Janyure and Emmanuel Marongedza (first, second and fourth defendants respectively). During the audit carried out in the year 2017 the plaintiff discovered a forged agreement of sale purporting that the plaintiff had sold Stand No. 20642 to second defendant on 5 September 2005 for ZWL$17 000 000.00 There was also, on file, an agreement dated 10th September 2012 in terms of which fourth defendant appeared to have substituted second defendant as the purchaser of the stand with the knowledge and approval of the plaintiff. The first defendant had masterminded the creation of the false documents. Plaintiff pointed out certain features which proved that both the agreement of sale and the subsequent agreement in terms of which fourth defendant became the new purchaser were counterfeit. These will be discussed under evidence. Later, first defendant had also misrepresented to the Ruwa Local Board that the fourth defendant had paid the purchase price to the plaintiff. The plaintiff prayed for an order declaring an order confirming that both the agreement purporting to be a sale of stand No. 20642 Cranbrook, Ruwa to second defendant and the subsequent agreement substituting fourth defendant were null and void plus costs of suit against the defendants one paying, the others to be absolved.</p> <p>First and second defendants filed a joint plea raising, once again, the preliminary issue, that plaintiff’s summons does not disclose a cause of action and should be dismissed for failure to comply with the rules. They did not except to the summons. On the merits they stated that second defendant properly acquired the stand from the plaintiff and disputed plaintiff’s allegation that first defendant generated a fake agreement. They averred that, in any event, in 2005 first defendant was not working for the plaintiff and accordingly he had no access to plaintiff’s records. They asserted that the agreement of substitution in terms of which fourth defendant substituted the second as the new purchaser was valid because second defendant had properly acquired the stand from the plaintiff in terms of a valid agreement of sale.</p> <p>In his plea, fourth defendant did not raise issues with plaintiff’s allegation that stand no 20642 had been ceded to him by second defendant and it was “... clear that the fate of his rights (was) dependent on the outcome of the action’ The action referred to was the court matter between plaintiff and second defendant over the validity of the disputed agreement of sale. He said he “…would …. (be) guided by the order of the court.” In the event that the Court found that second defendant’s impugned agreement of sale was invalid he would claim compensation for the improvements he had made at the stand. He filed a counter claim to that effect. He prayed for the dismissal of plaintiff’s claim and counter claimed a sum of $24 000.00. Fourth defendant later abandoned the counterclaim before evidence was led after notifying the court that in the event found against first and second defendants he would make a delictual claim against them.</p> <p><em>Case HC 3123/17[ Stand 20563 Cranbrook Park Ruwa]</em></p> <p>Plaintiff’s claimed as follows:</p> <p>It is the owner of stand No. 20563 Cranbrook Park, Ruwa. The 2017 audit uncovered other fraudulent transactions involving Gabriel Mandombo, Faith Tachiona, Lackson Chishava and Yulita Mabvanure (first, fifth, sixth and seventh defendants respectively). It found a forged agreement of sale purporting that on or about the 5th September 2005 plaintiff had sold Stand No. 20563 Cranbrook Park, Ruwa to fifth defendant for ZWL$17 000 000.00. A document dated 9th October 2007 purported to be an assignment agreement passing rights and obligations in the property from fifth to sixth defendant. Another assignment agreement dated 8 June 2010 purported to represent the passing of rights and obligations from sixth to seventh defendant. On the 25th January 2013 first defendant misrepresented to the Ruwa Local Board that seventh defendant had received the full purchase price for the stand whereupon the Local Board placed her on record as the owner. Plaintiff averred that the agreement of sale, the subsequent cessions and the letter by first defendant to the Ruwa Local Board were fraudulent. None of the defendants had paid the purchase price to plaintiff. The plaintiff prayed for an order confirming all transactions null and void together with costs of suit against the defendants jointly and severally, one paying, the others to be absolved.</p> <p>In his plea, first defendant stated that the summons does not disclose a cause of action and should be dismissed with costs. He said he was not the administrator of the plaintiff in 2005 which is the year appearing on the agreement of sale and in 2010 being the year appearing on the cessionary agreements. He asserted that the cessionary agreements between fifth and sixth defendants and later between sixth and seventh defendants were valid. As proof of the validity of the cessionary agreements he pointed out that plaintiff had accepted and receipted cession fees. First defendant prayed for the dismissal of plaintiff’s case with costs on the higher scale.</p> <p>Fifth defendant could not be located to be served with summons. Sixth defendant was duly served with the summons and declaration on the 9th August 2017 but did not enter appearance to defend.</p> <p>In her plea, seventh defendant asserted that the she acquired rights in stand no 20563 in terms of a tripartite agreement involving sixth defendant, plaintiff and her. She substituted sixth defendant as the purchaser of the stand with the knowledge and approval of the plaintiff. She said, on that basis, she had validly acquired rights in the stand. She put the plaintiff to the proof thereof of its averments disputing the cession of rights to her.  She said she paid the purchase price at the plaintiff’s offices. She said 1st defendant wrote a letter dated 28th January 2013 to the Ruwa Local Board confirming that she had paid the purchase price. She said she had paid ‘top up’ for the stand which plaintiff receipted. She kept the receipt. She averred, further, that whatever happened (went wrong) within plaintiff’s business is none of her business. She prayed for the dismissal of plaintiff’s claim with costs.</p> <p><em>HC 3124/17[Stand No. 20797 Cranbrook Park, Ruwa]</em></p> <p>Plaintiff averred that the audit uncovered other fraudulent sale and cessionary agreements involving its stand No. 20797 Cranbrook Park, Ruwa involving Gabriel Mandombo, Shylet Janyure and Stephen Zambu (first, second, and eighth defendants respectively). Plaintiff found a forged agreement of sale purporting that on or about the 3rd March 2004 the plaintiff sold Stand No. 20797 Cranbrook Park, Ruwa to second defenadant for $300 000.00. Plaintiff averred that there was evidence that the agreement of sale was comprised of documents sourced from other files and put together. Plaintiff pointed out certain features which proved that the agreement was false. These will be discussed in evidence. Also on file was another document dated 8th September 2011 purporting to be an agreement in terms of which eighth defendant substituted the second as the purchaser of stand no 20797. That too, according to the plaintiff was invalid. The invalidity and falsity will be discussed under evidence. Eighth defendant entered into another agreement with one Arizhibowa Douglas who substituted him as the purchaser and is currently in occupation. Arizhibowa Douglas did not participate in the trial because he reached settlement with the plaintiff. The plaintiff averred that it never sold the stand to second defendant and she never paid for it. Accordingly, no rights passed from it to second defendant.</p> <p>In a joint plea, first and second defendants stated that the plaintiff’s summons should be dismissed for failure to disclose a course of action. As at the date appearing on the agreement i.e in 2004 first defendant had no access to plaintiff’s records since he was not yet employed by it. They averred that second defendant was the ‘owner’ of the stand prior to cession to eighth defendant. They averred that the agreement in terms of which eighth defendant succeeded the second as the purchaser of the stand was handled by its administrator and therefore valid and that is why plaintiff accepted cession fees. They prayed for the dismissal of plaintiff’s claim with costs on the legal practitioner client scale.</p> <p>Eighth defendant was duly served with the summons and declaration on the 26th April 2017 but did not defend.</p> <p><strong><em>THE TRIAL</em></strong></p> <p><strong>Issues</strong></p> <p>I am being called upon, after hearing evidence to determine the following: -</p> <ol> <li><strong>whether or not the various plaintiff’s summons disclose causes of action</strong></li> <li><strong>If so, whether or not all or some of plaintiff’s claims have prescribed as alleged by the first and second defendants</strong></li> <li><strong>If not whether or not plaintiff sold stand nos 20755, 20642, 20563 and 20797 to the defendants whose names appear on the impugned respective agreements of sale. </strong></li> <li><strong>If not, whether the defences of estoppel are available to the fourth and seventh defendants</strong></li> </ol> <p>Counsel opted to make opening statements at the commencement of the trial.</p> <p>Mr <em>Mudziwepasi </em>said in all four cases, the plaintiffs will seek to prove that the initial sale agreements were fake and consequently the subsequent agreements of substitution were null void. He unpacked the reliefs sought by the plaintiff.</p> <p>            Mr <em>Nyamucherera</em>, representing first and second defendants, said that his clients would refute plaintiff’s allegations. His clients’ joint position was that all the agreements were genuine and second defendant had lawfully acquired stand nos 20755, 20642 and 20797 from the plaintiff which she validly resold to third parties. He submitted that first and second defendants would seek to prove that the plaintiff’s claims had prescribed. The period of prescription commenced to run from the dates on either the agreements of sale or substitution. Mr <em>Nyamucherera</em> said, in any event, the plaintiff was estopped from denying the validity of the agreements The estoppel arose from the fact that the agreements of substitution were executed at plaintiff’s offices. The plaintiff was estopped from disowning its own processes. The court asked Mr <em>Nyamucherera </em>whether he would not encounter difficulties in representing both first defendant and second defendant because first defendant is a former employee of the plaintiff who should have acted in the interests of his principal. In the event that it became clear that first defendant committed fraud it was not going to be possible for second defendant to cross-examine him to dissociate herself from the fraud. That was not achievable with the same lawyer representing both. Mr <em>Nyamucherera</em> replied that he was not compromised. Accordingly, the trial proceeded with Mr <em>Nyamucherera </em>representing first and second defendants. Counsel did not persist with the ‘preliminary objection’ to the effect that the various plaintiff’s summonses do not disclose causes of action. Clearly the plea lacked merit. In any event a litigant may not allege that a summons does not disclose a cause of action and plead on the merits without excepting to it. The fact that the first and second defendants pleaded on the merits is evidence that they had full appreciation of the case against them. See <em>Civil Practice of the High Courts of South Africa,</em> 5 ed Juta,By Herbstein &amp; van Winsen at p 630:</p> <p>“An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain the specific cause of action or specific defence relied upon.</p> <p>Taking an exception is a procedure which is interposed before the delivery of a plea on the merits by a defendant or before the delivery of a replication or rejoinder of issue a plaintiff. It is designed to dispose of the pleadings which are so vague and embarrassing that an intelligible cause of action or defence cannot be ascertained or to determine such issues between the parties as can be adjudicated upon without the leading of evidence.</p> <p>The aim of the exception procedure is thus to avoid the leading of unnecessary evidence and to dispose of a case in whole and in part in an expeditious and cost effective manner.”</p> <p> </p> <p>It follows that an exception should not be pleaded as a preliminary issue. It is not an issue which should await trial. Order 21 of the Zimbabwe High Court Rules, 1971 sets out the procedure after filing an exception. Ideally, the excipient must set the exception down by agreement with the other party within ten days (r 138 (a)), failure of which either party may unilaterally do so within a further period of four days. (r 138 (b)).    </p> <p>Mr <em>Chihuta</em> who represented the fourth defendant stated that his client had been caught up in a fight between plaintiff and second defendant. In the event that the dispute over the disputed sale of stand 20642 was resolved in favour of second defendant his client would naturally benefit and would pray for costs against the plaintiff. In the event that the court found against second defendant his client had counter claimed against them for reimbursement of the purchase price and compensation for the value of the developments. Mr Chihuta abandoned the counterclaim before the leading of evidence.</p> <p>            Mr <em>Masaiti</em> who represented the seventh defendant adopted the fourth defendant’s submissions. He said seventh defendant is in possession of stand No. 20563 which was sold to the fifth defendant. He submitted that fifth defendant duly acquired rights in the stand from the plaintiff before ceding her rights to the sixth defendant, who in turn ceded same to seventh defendant.</p> <p><strong>PLAINTIFF’S CASE</strong></p> <p><strong>Plaintiff’s first witness</strong></p> <p>What follows is an account of<strong> Collins Chinzou</strong> who was sworn in to testify as plaintiff’s first witness. He is plaintiff’s managing director. The plaintiff’s co-business is buying land, servicing it and selling stands. He holds a degree in Town and Country Planning and a postgraduate diploma in Development Planning and City Planning. He is a member of the Royal Planning Institute.</p> <p>            Plaintiff discovered that first defendant prepared agreements of sale purporting to have sold plaintiff’s stands located in Granbrooke Park Ruwa to his wife, second defendant. He said plaintiff never entered into an agreement of sale with first defendant’s wife for the sale of the stands and had not received any payment from her for the stands. He identified and produced as plaintiff’s exh 1 a bundle of documents being Deed of transfer NO. 2398/96 with attachments namely: -</p> <ul> <li>a schedule of property transferred</li> <li>a subdivision permit dated 27/11/2002</li> <li>a list of 181 stands created in terms of the permit.</li> </ul> <p>The witness said the plaintiff never sold <em>stand no 20755 </em>to the second defendant. He</p> <p>produced a bundle of documents as plaintiff’s exh 2 consisting of: -</p> <ul> <li>an agreement of sale with second defendant as the purchaser</li> <li>an addendum in terms of which the third defendant was substituted for second defendant as the new purchaser</li> <li>a receipt No. 024 for the sum of $850 000 purportedly issued by plaintiff to second defendant after she paid for the stand.</li> </ul> <p>The witness said plaintiff was disputing all the documents in exhibit 2. To demonstrate</p> <p>that the sale agreement dated 9 October 2005 was false he said the purchase price of $800 000.00 was inconsistent with the correct values for the year. According to his recollection stands were selling at $2 500 per square metre and the correct value was $300 000. The year ‘2005’ on the signature page of the agreement had been altered to read 2002 by the cancellation of “5” and substitution therewith “2”. He believed that the signature page had been obtained from the plaintiff’s other files since the plaintiff kept duplicate originals of all agreements signed. He identified the handwriting on the agreement as that of the first defendant. He said the anomalies were discovered after an audit carried out to check whether all agreements of sale were more and whether the stands sold had been fully paid for.</p> <p>            The witness said that first defendant had also created another agreement of sale purporting that plaintiff had sold <em>stand 20642</em> to the second defendant. According to him no such sale had taken place. He produced plaintiff’s exh 3 the agreement being a bundle consisting of</p> <ul> <li>The deed of transfer 2938/97 and subdivision permit</li> <li>The disputed agreement of sale for stand no 20642 dated 5 September 2005</li> <li>Addendum dated 10 September 2012 in terms of which fourth defendant substituted second defendant as the purchaser for the stand. (In this respect the court noted that the acknowledgement signed by fourth defendant was back dated 10 Feb 2012)</li> <li> Plaintiff’s letter dated 18 May 2016 asking for proof of purchase</li> <li>Extract from receipt book showing a forged receipt in the name of second defendant.</li> </ul> <p>According to the witness all the documents, except plaintiff’s title deed, were not genuine. He pointed out that the year, 2005, on the agreement was an alteration of the year 2002 by the deletion of the typed “5” and substitution there with a handwritten “2” thereby backdating it. He identified first defendant’s handwriting on the forged agreement of sale purporting that the stand plaintiff had sold the stand to his wife, second defendant for $17 000 000.</p> <p>            The witness testified that first defendant had forged another transaction with respect to <em>Stand No. 20563.</em>He produced plaintiffs exhibit 4 consisting of the following: -</p> <ul> <li>The disputed agreement of sale dated 5 September 2005 with fifth defendant as the purchaser</li> <li>an addendum dated 9 October 2007 in terms of which sixth defendant was substituted as the new purchaser.</li> <li>another acknowledgment dated 8 June 2010 (the court noted the year had been changed from 2011 to 2010) in terms of which seven defendant substituted sixth defendant as yet another new purchaser.</li> <li>another addendum dated 8 June 2011(altered from 2010) being the disputed cessionary agreement between sixth and seventh defendants. The acknowledgment signed by the seventh defendant as part of the agreement of substitution was backdated 8 June 2010)</li> </ul> <p>      He said in his opinion, a copy of the signature page of an agreement containing his signature had been shopped elsewhere and attached to the fake agreement and in any event all the documents were invalid. He said plaintiff never dealt with all the defendants.</p> <p>            The witness testified as follows with respect to<em> stand No. 20797</em>. He produced the plaintiff’s bundle as Exhibit 5 containing the following: -</p> <ul> <li>The disputed agreement of sale with second defendant as the purchaser.</li> <li>An Addendum dated 8 September 2011 in terms of which eighth defendant was substituted as the purchaser.</li> <li>A receipt Number 1424 for $300 000 dated 3 August 2004 purporting to be the receipt issued by plaintiff to second defendant</li> <li>the report by L T Nhari, a Questioned Document Examiner and</li> <li>Confirmation by Econet that cell No. 0772 599 757 belonged to first defendant and was first used/registered on 21 April 2010.</li> </ul> <p>            He testified that the forged agreement was on plaintiff’s typed template but had been completed by the first defendant and in all probability the signature page (page 8 thereof) had been shopped from elsewhere and affixed to a forged agreement.</p> <p>            Under cross examination by Mr <em>Nyamuchera</em> representing first and second defendants the witness maintained that the agreement for stand No. 20775 was forged. He was unable to explain how a signature which he admitted to be his was appearing on the agreement he claimed to be forged. He was however steadfast that he never signed an agreement of sale with second defendant as the purchaser. He said before first defendant started working for the plaintiff Mrs Chinzou (the witness’ wife) used to hire him as a casual worker to assist in preparing agreements. He conceded that the plaintiff was placed under judicial management in 2017. A list of beneficiaries presented to the judicial manager contained second defendant’s name against stands Nos. 20797 and 20625 and there was no name against stand 20755.</p> <p>He was questioned how the substitution agreement for stand no 20755 could have been processed on the strength of a photocopy of an agreement of sale and why plaintiff accepted cession fee and why the fee was receipted by plaintiff’s employee and explained that first defendant was in control and Nicola, who wrote the receipt worked under the instruction of first defendant.</p> <p>            Still under cross-examination by Mr <em>Nyamucherera</em> he maintained that first defendant filled in the details on the disputed agreement of sale for stand No. 20642. He maintained his stance that Nicola Jack has issued a receipt for the cession at the behest of the first defendant.     Asked why innocent parties who were misled by plaintiff’s employee, first defendant, should be prejudiced, he replied that the third parties were not innocent.</p> <p>            With regards to stand No. 20563 (HC 3123/17) he conceded that the agreement was typed. He however maintained that first defendant had prepared it since he was plaintiff’s administrator on the time the fraud was discovered.</p> <p>            With regards to stand 20797 the witness conceded that the plaintiff had withdrawn its claim against Arizhibowa Douglas. He did not know why the decision had been made. (It turned out later in evidence that the decision had been made by Broadwell Chinzou).           </p> <p>            Under cross-examination by Mr <em>Chihuta,</em> for the fourth defendant with regards to stand No. 20642 witness conceded that the signature on the agreement of sale was his and that the agreement of substitution was on the official letterhead. He also confirmed that fourth defendant paid cession fee and that in the circumstances a 3rd party would have no reason to doubt that the substitution was proper. He also confirmed that fourth defendant had built a house at the strand. He confirmed that he has no evidence of connivance between first, second and fourth defendants.</p> <p>            Cross examined by Mr <em>Masaiti </em>for the seventh defendant the witness confirmed that he had seen seventh defendant at the plaintiff’s offices accompanying a relative who had bought a stand. Mr <em>Masaiti</em> put to the witness certain remarks contained in a judgment of a magistrate who tried a related criminal matter that plaintiff was unjustifiably backtracking on the agreement of sale. He conceded that the magistrate had made the observations. He conceded that an innocent purchaser could not have known that there was anything amiss. He also conceded that what resembled the plaintiff’s letterhead was used in plaintiff’s office by first defendant, to process seventh defendant’s substitution agreement at the time that first defendant was an employee of the plaintiff. The witness also conceded that seventh defendant paid a cession fee which was receipted by the plaintiff. The witness also conceded that three persons were involved in the cession i.e. one employee showed seventh defendant the stand, another drafted the cession agreement and yet another wrote the receipt. He conceded that the signature on the original agreement was his but he could not say how it got there. He conceded that the signature page bore a signature attributed to fifth defendant but failed to explain how the signature was on the same page with his if he did not sign the agreement. He conceded that seventh defendant paid a ‘top up’ in response to a general letter addressed to all purchasers of stands.</p> <p>            The witness conceded that first defendant prepared and signed all agreements of substitution and was virtually in control of all activities of the plaintiff.</p> <p> </p> <p> </p> <p><em>Brief comment</em></p> <p>It was clear from Collins Chinzou’s evidence that he entrusted the plaintiff’s property business in the administrator. His faith in the administrator reached the level of naivety. It is not surprising that at some stage the plaintiff had to be placed under judicial management after suffering losses. While giving evidence Collins Chinzou appeared largely disorientated and of doubtful fitness health wise.</p> <p><strong>Plaintiff’s second witness</strong></p> <p>The plaintiff called <strong>Broadwell Chinzou</strong> as its second witness.</p> <p>            He said his qualifications are a degree in Accounting Science and membership of the Institute of Chartered Accountants and Botswana Institute of Chartered Accountants.</p> <p>            He worked for the plaintiff as its administrator. His duties as administrator are to do customer reconciliations, drafting agreements of sale, liaising with external auditors, attending to customer queries and any other duties as may be assigned. He turned out to be plaintiff’s key witness because he was personally involved in the audit of all stands that had been sold to determine validity of all the various documents pertaining to the sales. Wherever he was not satisfied he wrote letters inviting the persons in occupation to bring proof of purchase and payment of the purchase price.  The audit unearthed the transactions which the plaintiff now wants confirmed as invalid by this court.</p> <p><em>His evidence with regards to stand 20755</em> was as follows: -</p> <p>First defendant started working for the plaintiff as administrator on 1 April 2006. He went through the plaintiff’s bunch of documents which were produced together as exh 2. He identified the agreement of sale dated 9 October 2002 as the one which he found on file with respect to the sale of stand No. 20755. On the face of it, it was an agreement between the plaintiff and second defendant. He however said it was a counterfeit and to demonstrate that he made the following observations.</p> <ul> <li>The agreement of sale bore first defendant’s handwriting and yet it was dated in the year 2002. The presence of the first defendant’s handwriting was strange because he (first defendant) had not started working for the complainant in the year 2002.</li> <li>The signature at p 7 of the agreement ought to have the signature of Mrs Chinzou who was the then director, shareholder and signatory responsible for preparing all agreements. In all probabilities the agreement dated was drawn well after 2002 and backdated. The date had been changed from 2005 (typed) to 2002 (in pen).</li> <li>. There was no receipt on file. All receipts are written in triplicate i.e. customer copy, file copy and a fast copy which remained in the receipt book He found a fast copy No. 024 dated 9 October 2002 for $800 000.00. A handwriting expert examined the fast copy and concluded that the first defendant had superimposed his wife’s (second defendant’s) name and stand No. 20755 on old cancelled receipt. The expert identified the handwriting as that of the first defendant. First defendant was not yet working for this plaintiff in 2002 and his handwriting was not expected to be on the receipt dated 9 October 2002.</li> <li>The stand is occupied by third defendant who upon being interviewed claimed to have bought the stand from the second defendant. Third defendant produced an agreement of substitution on what appeared to be plaintiff’s letterhead. The letterhead was forged. It bore cell No 0772 599 757 which belonged to first defendant and not that of the plaintiff. The landlines on the agreement belonged to the plaintiff but plaintiff had long stopped using them.</li> <li>The standard procedure for cessions required the original agreement of sale, a separate agreement of the parties to the resale, verification by the plaintiff whether the cessionary was indeed the holder of rights and interest in the stand and verified proof of the purchase price. In the case of stand 20755 the cession was done without the original agreement of sale to back it.</li> <li>The payment by third defendant of cession fees to the plaintiff was a design by first defendant to launder a fraudulent transaction. First defendant had approved the cession in his capacity as administrator. The receipt for the cession fees was issued by the receptionist on the instruction of first defendant in his capacity as administrator.</li> </ul> <p><em>His evidence with regards to stand 20642</em> <em>was as follows</em>: -</p> <p>The agreement of sale dated 5 September 2005 produced as part of exh 3 was ostensibly between second defendant and the plaintiff but it was fake.</p> <ul> <li>He said the agreement was backdated and a counterfeit. The cell No. 0734 359 263 appearing on the agreement had only been acquired by Mr Chinzou (1st witness) in the year 2014. During the years 2005 and 2006 Telecel numbers were prefixed by the code 023 and not 073. In 2005 Mr Chinzou was using a Net one line. He pointed out certain cancellations on page 2 of the agreement signed for by Mrs Chinzou. The purchase price was changed by the cancellation of $15 000 000 and substitution therewith $17 000 000 in paras 3 and 3.1. The words ‘N/A’ were inscribed in ink in paras 3.2, 3.3 and 3.4. It was too much of a coincidence that page 2 of the agreement for stand No. 20563 purportedly sold to fifth defendant had identical alterations in the same handwriting. The agreements found in the respective files for stand No. 20642 and 20503 were photocopies. He arrived at the conclusion that those pages had been photocopied from the same source document. Another striking similarity between the agreements for stand No. 20642 and that for stand 20503 was that both agreements do not have typed clauses 15, 16 and 17 which are part of the plaintiff’s template. Actually under clause 15 there is just the sub-heading ‘WAIVER’ and nothing follows. The signature page is not numbered, again contrary to the template. The font on the first page is different from the rest of the agreement which means the front page was prepared separately and copies from other sources affixed to it. He said the agreement did not exist in the plaintiff’s records. He pointed out the agreement which plaintiff found on file was different from the one which first and second defendants tendered with their bundle of documents. [The court recalled that first and second defendants had, in their joint plea asserted that the disputed agreement found on file was genuine. At pre-trial conference stage they came up with a wholly new typed agreement structured differently. Actually they formally admitted that the new agreement had not been pleaded] The witness said the agreement which was now being produced by first and second defendant was an afterthought.</li> <li>He said that he, on behalf of plaintiff, during the audit, asked second defendant to produce the original agreement of sale and a receipt for the purchase price. She brought receipt No. 2101 dated 8 July 2004 for $17 000 000 which appeared to have been prepared and signed by Henry, plaintiff’s employee. The receipt was submitted to forensic examination and some anomalies were uncovered. The receipt was dated in 2004 yet the agreement was dated a year later in 2005. The receipt No. 2101 had been used several times fraudulently. The <em>bona fide </em>receipt No. was issued to Mary Mupinda who bought stand No. 20704. The receipt had also been fraudulently used in another transaction involving Rickwood Investments. [Rickwood settled the matter after Rickwood agreed to pay the purchase price]. The receipt No. had therefore been used for 3 different people for 3 different values. In the case of second defendant, the receipt was dated 8 July 2004 for 17 million. With respect to Rickwood it was dated 21 April 2005 and the figure is $2 million. The genuine receipt was dated 26 April 2005 issued to Mary Mupinda for 4 million. [Figures changing due to the hyperinflation and slashing of zeros by the reserve bank.]</li> <li>Second defendant had entered in an agreement with fourth defendant in terms of which the latter substituted her as the purchaser. The witness said the agreement had been executed in order to launder the stand. When first defendant prepared the agreement of substitution he knew that second defendant did not have rights to cede to fourth defendant. The phone number on the substitution agreement is 0773 597 757 which belongs to first defendant as confirmed by Econet in an affidavit. The email address <a href="mailto:palchinassociates2@gmail.com">palchinassociates2@gmail.com</a> does not belong to the plaintiff and plaintiff has no access to it.</li> </ul> <p><em>His evidence with regards to stand 20563 was as follows</em>: -</p> <p>The agreement of sale found on file was a counterfeit. He gave the reasons stated below for the assertion.</p> <p>The agreement was inconsistent with plaintiff’s standard template.</p> <p>The mobile telephone no.  073435263 was acquired by Mr Chinzou in 2014 and there was no way it could have been used in 2005. The prefix for Telecel numbers in 2005 was 023 and not 073. The agreement was therefore not created in 2002 or 2005. It would only have been created after Mr Chinzou’s cell number was known i.e. after 2014. Page 2 is a replica of page 2 of the agreement for 20642 with the cancellations and corrections identical signed for by Mrs Chinzou. Clauses 15, 16 and 17 are also missing. The last page had a different font from the other pages of the agreement. The page was pulled out of an agreement prepared by an Estate Agent known as Metro Properties (which was doing business with the plaintiff) and affixed to a forged agreement. He found out that the page was pulled from an agreement by an estate agent, the two properties with respect to an agreement with Cornelius Moyo who bought stand 20629 through the estate agent. There was no record of any payment by fifth respondent. There were agreements in terms of which sixth defendant substituted fifth defendant and subsequently sixth defendant had been substituted by the seventh defendant. The agreement of substitution between fifth defendant to sixth defendant is dated October 2007 and was recorded on an imitation of plaintiff’s letterhead bearing cell no number 0772 599 757 which belonged to first defendant. He first used the cell number as new on 21 April 2010. In 2007 Mrs Chinzou was alive and she was the administrator. There was no reason the cessionary agreement would bear first defendant’s cell number which was not existing anyway in 2007. He said in all probabilities the agreement was prepared later than 2007 and backdated. He said the sixth defendant never paid cession fees.</p> <p>He said seventh defendant had claimed in earlier proceedings at the magistrate court that she had bought the stand from the plaintiff in the year 2011 yet the cession to her is dated 8 June 2010. The transcript of the proceedings in the Magistrates Court was produced by consent and the date 8 June 2010 appears at pa 4. The witness testified that seventh defendant had conceded the discrepancy under cross-examination during the criminal trial and that appears at page 17 of the Criminal trial record.</p> <p>He said during a cession the parties were required to bring proof of their own agreement for the resale, the original agreement of sale and proof of payment of the purchase price for verification. First defendant had prepared and signed the agreement of substitution without all that in order to launder the stand. He said there was proof that seventh defendant had never met sixth defendant to conclude any agreement of substitution and that appears at p 17 of the Criminal record of proceedings. No one, including seventh defendant, had seen the had signed the sixth defendant signing the agreement of substitution. He said the plaintiff does not handle resales of stands. He testified that stand 20563 had been sold to one Pascal Bambe who defaulted payment leading to its repossession in 2014. There is no way the same stand could have been sold and ceded to seventh defendant in 2010 or 2011.</p> <p><em>His evidence with regards to stand 20797 was as follows</em>: -</p> <p>            The witness said all the transactions found on file were invalid. He took the court through the various documents in the bunch produced as plaintiff’s exh 7.</p> <ul> <li>The agreement of sale had the following anomalies. First defendant’s cell number 0912 599 757 was inserted as the purchaser’s contact number. Clauses (a) to (e) on p 1 were repeated on p 2. The agreement was not on the plaintiff’s standard template. Clauses 16 and 17 were repeated. The agreement had p 7 repeated. The last page had the date changed from 2005 to 2004. What it means is that the page was pulled from a 2005 agreement and backdated. If the agreement was prepared in 2004 it could not possibly bear a future date. The handwriting on the agreement is that of the first defendant. This was confirmed by the questioned document examiner. In 2004 Mrs Chinzou was still alive and an administrator. She therefore should have signed the agreement of sale but her signature is missing. While the agreement had the year changed from 2005 to 2004, the last sentence on p 2 says that payments were supposed to commence in 2003, which is a year earlier before the agreement was dated. In any event the agreement purported to be a cash sale and there would have been no need for instalments. Page 2 had reference to instalments. It means the page was shopped from an instalment sale agreement and affixed. The witness opined that in all probabilities somebody put documents together from various sources but faked to synchronize the dates.</li> <li>There was a receipt for the stand in the name of the second defendant dated 3 March 2004 in the sum of $300 000 purportedly receipted by Sarah. The questioned document examiner identified first defendant as the person who wrote second defendant’s name, the stand no. 20797 and the amount.</li> <li>There is an agreement of substitution in favour of eight defendant dated 8 September 2011. He said that agreement too is a counterfeit. The letter head on which the agreement of substitution is recorded bears first defendant’s cell number 0772 599 757 which had also appeared as second defendant’s number on the agreements of sale.</li> <li>The witness had been hoodwinked to approve the substitution of Arishbhowa Douglas as the purchaser of the stand in question before discovering the fraud. The plaintiff and Arishbhowa have resolved the matter between them.</li> </ul> <p>            The witness concluded his evidence in chief by stating that first defendant had worked for the plaintiff in different capacities from 2004 to February 2016. During his employment he became administrator after the death of Mrs Chinzou.</p> <p><em>Cross-examination of second witness</em></p> <p>The witness was cross-examined by Mr <em>Nyamucherera</em> for first and second defendants at length over a period of 3 days. He remained unshaken. The substance of his testimony remained intact. The anomalies that he had pointed became even more glaring.</p> <p>            The witness was also cross examination by Mr <em>Chihuta,</em> for the fourth defendant. It will be recalled the fourth defendant’s position was that he acquired stand 20642 from second defendant. The witness conceded that first defendant wrote a letter to the Ruwa Local Board purporting to act for the plaintiff confirming that fourth defendant had paid the full purchase price. He conceded that fourth defendant could have equally fallen victim as the plaintiff. The witness conceded that during his tenure, first defendant had assumed the <em>de facto</em> powers of a director of the plaintiff since he was administering all business of the plaintiff from drafting agreements, handling clients, handling clients’ queries, selling stands, reconciling customer records and permit and authenticating resales, preparing cessions agreements with respect to resale. He also conceded fourth defendant paid cession and top up fees for the stand. He conceded that, on the face of it, the counterfeit purchase agreement in second defendant’s name looked genuine and bore the signature of plaintiff’s director even if shopped elsewhere. He also conceded that anyone in the position of the fourth defendant could have been misled by first defendant’s conduct. He conceded that there was nothing to alert an innocent purchaser to the anomalies he had pointed out. He also conceded that plaintiff had failed to place sufficient safeguards to work as checks and balances on the way first defendant was carrying out his duties. He conceded that the plaintiff left itself wide open to abuse coz it entrusted too much to first defendant. The witness conceded that “plaintiff was exposed to high level of risk.” The witness said that the fraudulent scheme was conceived by first defendant who had manipulated the lack of checks and balances.</p> <p>            Under cross examination by <em>Mr Masaiti</em> who represented seventh defendant the witness conceded that first defendant had so much power that he was the heartbeat of the plaintiff. He conceded that seventh defendant paid cessions fee whereupon the stand is registered under her name at the Ruwa Local Board. The first defendant had written a letter to the Ruwa Local Board falsely confirming that seventh defendant had paid the purchase price. He however maintained that seventh defendant had not paid the purchase price for the stand. She did not have a receipt.      </p> <p><strong>Plaintiff’s third witness</strong></p> <p>The third and last witness to testify for the plaintiff was <strong>Leonard Tendai Nhari</strong><em>,</em> a Forensic expert. He said he is a holder of degrees of BSc in Physiology and Msc in Bio Chemistry with special emphasis on forensic analysis. He is a former Government Chief Forensic Scientist. He started practicing in 1980. He is a former Forensic Consultant for the Commonwealth. Technical Operations in Namibia from 1990 to 1993. He was a member of the Forensic Science Society of the UK and he has practiced as consultant since 1999. He outlined his expertise as Forensic Science investigation including examination of questioned documents, handwriting and signature comparisons, verification and analysis of print script and investigation of fraud cases.</p> <p>He identified the report he prepared with respect to the questioned documents. He demonstrated why in his opinion receipt No. 024 in the sum of $800 000 for stand 20755 was fake. He said it was a carbon copy which had physical evidence of cancellation marks and the handwriting on it was consistent with the handwriting on the agreement for stand 20755. He identified first defendant as the author of both documents. He confirmed the receipt for stand No. 20797 as counterfeit as well. The witness was subjected to cross examination but has profession findings could not be discredited.  </p> <p><strong>Application for absolution from the instance</strong></p> <p>First, second, fourth and seventh defendants applied for absolution from the instance.  Mr <em>Nyamucherera</em> who represented first and second defendants had clear difficulties in motivating the application on behalf of his clients in the face of the evidence of Broadwell Chinzou and the Questioned Document Examiner. He was clearly compromised.  The weight of the evidence adduced on behalf of the plaintiff pointed to first defendant as the main architect of the fraudulent transactions. His foot prints had been traced in most of the agreements of sale, cessionary agreements, receipts and interaction with the various cedents.  At the same time, first defendant had not disclosed to his principal (the plaintiff) that second defendant was his wife. First defendant had thus failed to disclose his interest in second defendant’s dealings with the plaintiff. For all intends at all times when he put his wife’s name on sale agreements and agreements of substitution he was essentially transacting with himself. He was representing both the seller and the purchaser at the same time, his wife and he having come from the same house and bed to transact in plaintiff’s office. In any event there is no way he would have validly created a binding agreement. A valid contract comes into existence when the minds of two or more persons meet with a view of creating binding obligations. See The law of contract in Sought Africa 3rd ed by RH Christe at p 7 the heading ‘Proof of agreement’</p> <p>“In order to decide whether a contract exists, one looks first for the agreement by consent of two or more parties. A person cannot contract by himself alone….”</p> <p> </p> <p>Although there are suggestions that can happen it would have to be an exceptional</p> <p>cases where a person acts in different capacities with the necessary authority. For the purposes of this judgment it will not be necessary to explore that complex area of contract law. This was a contract of sale. See p 60 of Business Law in Zimbabwe by RH Christie.</p> <p>At page 142. The author explains the formation of a contract of sale is very simple terms</p> <p>“The general requirements for the formation of a contract of sale are no different from those applicable to any other contract, but for any contract to be identifiable as a sale there must, as noted above, be an agreement to exchange property for a price …”</p> <p> </p> <p>At p 141 a sale is defined as:</p> <p>“a contract in which one promises to deliver a thing to another, who on his part promises to pay a certain price.”</p> <p> </p> <p>A person may therefore not exchange with self or pay a price to self. Put differently a person may not validly enter into a contract which entails exchange of values with oneself.</p> <p>The first defendant also had an obligation in a normal transaction to disclose his personal interest. Our common law makes it an offence when an agent unlawfully conceals from a principal his interest in a transaction see s 173 of the Criminal Law Codification and Reform Act [<em>Chapter 9:23</em>] or fails to disclose the full nature of a transaction to his principal (see s 172 of the Criminal Law Codification and Reform Act. It is inconceivable that one would expect an unlawful act committed against another to create obligations between the offender and the victim.           </p> <p>A contract induced through misrepresentation cannot be treated as binding. One can misrepresent through non-disclosure and the innocent party can refuse to be bound by that agreement. A sale should be <em>bona fide</em>. See <em>The Law of Contract in South Africa </em>3 ed RH Christe at p 7. In this case first and second defendants held themselves out to the plaintiff and its workers as strangers in order to conceal first defendant’s personal interest in the transactions he was handling. There is no way the plaintiff would have let first defendant handle transactions on its behalf in which he had a personal interest.</p> <p>            I concluded that the evidence presented by the plaintiff was such that if not challenged could lead me to find for the plaintiff. See <em>Gascoyne</em> v <em>Pant &amp; Hunter</em> 1917 TPD 170 <em>Tekere</em> v <em>Sibanda &amp; Anor</em> HB 90/18.</p> <p>I failed to appreciate the argument that there was no cause of action for a declarator or that there was no relief sought against first defendant. First defendant’s actions were being impugned and the order sought was to confirm the invalidity of his actions when he purported to conclude agreements on behalf of the plaintiff.</p> <p>First and second defendants put forward the defence of prescription as points <em>in limine</em> in their joint plea. Prescription is a special plea and it was up to the defendant who raised it to establish same even in circumstances where it was not properly pleaded. On the merits, the second defendant had the burden to prove that she had paid the purchase price. See RH Christie at p 481</p> <p>“when it is disputed whether payment has been made or not, the onus is on the debtor to prove that he has paid the debt in question. If he fails to satisfy the court that there is a sufficiently strong balance of probabilities in his favour, judgment must be given against him. There can be no question of absolution from the instance.”</p> <p> </p> <p>Further down on the same page</p> <p>“A forged receipt naturally has no probative value.”</p> <p>For the reasons stated above I dismissed the application by first and second defendants.</p> <p>Mr <em>Chihuta</em> also applied for absolution from the instance on behalf of fourth defendant. He submitted that fourth defendant was an innocent purchaser. At the close of the plaintiff’s case he had not presented evidence of his <em>bona fides</em>. There was no evidence that he had paid any price for the stand. There was no evidence of any agreement between him and second defendant. The questions put on behalf of the fourth defendant in cross-examination raised issues of estoppel. Estoppel is in substance a defence by way of confession and avoidance. The fourth defendant did not plead estoppel. He also did not incorporate its essentials in his plea filed of record. Even if he had done so, the <em>onus</em> or burden of proof would still be on him and he could only discharge such burden in the defence case. Burden of proof is defined as the duty which a party has of satisfying the court that he is entitled to succeed in his claim or defence whatever the case may be. The incidence of that burden decides which party will fail on a given issue if after hearing the evidence the court is left in doubt. It is also called the risk of non-persuasion. The burden or onus in civil cases is determined by the pleadings. See <em>The South African Law of Evidence</em>, LH Hoffman and DT Zeffert at pp 497 &amp; 498. There is no way fourth defendant would discharge such a burden without giving evidence. Accordingly, I also dismissed fourth defendant’s application.</p> <p>Mr <em>Masaiti </em>made a similar application for seventh defendant submitting that she was an innocent purchaser who had acquired rights by way of cession from sixth defendant. It was however common cause that she never met sixth defendant. She never had an agreement with him. She never paid money any money to him. Seventh defendant pleaded the essentials of estoppel albeit inelegantly because she did so as a self-actor. She also could not discharge the burden on her without giving evidence.</p> <p><strong>THE DEFENDANTS’ CASES</strong></p> <p>            <strong><em>Gabriel Mandombo</em></strong> said he was plaintiff’s administrator from 2009 to 2016.</p> <p>            <em>His testimony with regards stand 20755</em> was that he helped his wife, second defendant by filling in her personal details and price, size and number of the stand in the blank spaces of the template prepared by Mr Chinzou. he was helping his wife (second defendant). He said he purchased more than 30 stands from the plaintiff and this was one of them which he bought for his wife. He said there was nothing amiss about his handwriting on the agreement of sale since agreement of sale templates were completed by purchasers. He produced his own agreement of sale to demonstrate that. He said the price of $800 000 was within the range of the prices of the stands and cited examples. He said nothing turned on the cancellations on the agreement. He said all the four impugned agreements of sale were dated prior to his recruitment by plaintiff and at that time he had no access to plaintiff’s files. However, all records of payments for the stands were in the company records and computer system. He accepted that he wrote receipt No. 024 dated 9 October 2002.  He said the receipt had originally been written in 2002 but he did the overwriting in the year 2010. Like all other receipts he wrote which were identified by the Forensic Scientist he extracted the information from the printout/reconciliation in the computer. He said when he joined plaintiff all the stands had been sold. What was left was stand audit and matching with the owners. He accepted that he processed and approved the agreement substituting his wife with third defendant as the new purchaser of stand 20755. Nicola Jack receipted the cession fee.</p> <p><em>With regards to stand Nos. 20642 and 20563 first defendant said</em> he does not know why he is being accused of preparing the agreements of sale. He had no comments to make on the anomalies. He admitted processing and approving the agreement in terms of which fourth defendant substituted his wife as the purchaser cession of Stand No. 20642. He produced exhibit 13 being a typed agreement of sale in fifth defendant’s name, an agreement of substitution between fifth and sixth defendants and another agreement in terms of which seventh defendant substituted the sixth. The court noted that the agreement of sale was different from the one found on file in that its page 2 was typed and had no corrections. First defendant conceded that his copy of the agreement of sale for stand no 20642 was typed throughout was not similar to the one found on plaintiff’s file. He was unable to explain satisfactorily why copies of the same agreement would differ. He was unable to explain why he failed to dispute the agreement submitted with plaintiff’s summons which was dissimilar to the one he produced at pre-trial conference stage. His agreement also bore a different phone number. He said his copy of the agreement of sale had to be changed when his personal details changed. The court finds the witness’ explanation preposterous. An agreement is not rewritten simply because a cell number has changed. The changes are effected in the file and not on the agreement itself. It did not contain the date on which fifth defendant signed. He said payments for the stands were appearing in the plaintiff’s system. He also conceded that the agreements for stand 20642 and 20563 had striking but unusual similarities like the same cancellations and corrections on p 2 purchase price and same missing clauses. He was unable to explain the coincidence. He was unable to explain why he did not disclose to plaintiff his personal interest in the purported purchases of stand by his wife or the cessions.</p> <p>He said he had not prepared the substitution agreement dated 2007 for stand no 20563 wherein sixth defendant substituted fifth defendant. He processed the cession from sixth to seventh defendant. The court noted that the agreement of substitution between fifth and sixth defendants had not signed by sixth defendant. First defendant said he had sold and received the purchase price on behalf of sixth defendant.  </p> <p><em>With regards to Stand No. 20797 first defendant’s testimony was as follows:</em></p> <p> He said his wife validly ceded her rights to eight defendants on 8 September 2011. He said the agreement of substitution which he approved was above board and another employee was involved by writing the receipt. He accepted that the cell number on the agreement of substitution is his. He started working for the plaintiff in 2009. He said all cession done before he joined the plaintiff as an employee had his number. He said he inherited the number 091 2 599 757 from Mr Chinzou who had been using it before 2009. He however did not controvert the evidence from Econet that the line was first used as new on 21 April 2010 and that was the first registered user of that line He confirmed that he had written receipt No. 1424 for the purchase price of $300 000. He said he wrote the receipt after getting information from the computer. He said his wife’s receipt was genuine notwithstanding the receipt for Mary Mupinda which he was seeing for the first time.</p> <p>Brief comment</p> <p>            <strong>Second defendant</strong> testified. <em>With regards stand no. 20755</em> her evidence was that she bought stand from the plaintiff on the 9th October 2002. She said she paid cash whereupon plaintiff issued receipt No 024 to her. She said she later sold her rights to third defendant but she and third defendant did not attend at plaintiff offices together. They signed on different dates. She confirmed that her husband prepared the agreement of substitution. Under cross examination she said the agreement for stand no 20755 was brought for her by her husband already completed thereby contradicting her husband. She said she did not have the agreement of sale and receipt for stand no 20755 because she sold the stands [ implying that she gave the documents to the substituted purchaser.] She claimed that she and her husband acquired numerous stands which they sold.</p> <p>            <em>With regards Stand 20797</em> she said she bought the stand from plaintiff and later sold it to eighth defendant</p> <p>            <em>With regards Stand No. 20642</em> her evidence was that she bought the stand from plaintiff. She explained that she paid for this stand in 2004 but she was only invited to sign the agreement a year later and that explained why the receipt predated the agreement of sale. She said she signed two different agreements for this stand. She said they were similar. Her attention was however drawn to clause 3.4 which had a different meaning, she could not explain why she failed to dispute the impugned copy found on file. [If anything in her joint plea with her husband she had asserted that the plaintiff’s copy which she now disputed was genuine]. She was clearly shaken under cross examination and she could not explain any of the unsatisfactorily features. She could not explain how Mrs Chinzou’s cell number had been inserted as purchasers (her number) on the agreement of sale for stand 20642. It was understandable because first defendant had brought the agreements to her already completed. Cross-examined by Mr <em>Chihuta </em>for fourth defendant she confirmed that she never showed fourth defendant the typed a copy of agreement which she had claimed was given to her. She did not dispute that first defendant introduced her to fourth defendant not as his wife but as a teacher from Kwekwe. She said she ceded her rights to fourth defendant at plaintiff’s premises.</p> <p>            In re-examination the witness said she had not seen the original of certain of the agreements. She said she was not present when the agreements were prepared.</p> <p>First and second defendants then closed their case.</p> <p><strong>Fourth defendant testified</strong>. He said he is a builder. He said he met first defendant in Ruwa servicing some stands. He asked first defendant whether he or his company still had stands for sale. First defendant said all stands had been sold but there were people who had lost employment who were selling stands. They agreed that first defendant advise should a stand become available. Later, first defendant told the witness a teacher from Kwekwe was selling a stand for $4000. The witness went to the plaintiff’s offices where he requested to be directed to first defendant’s office. In the office he met second defendant who was introduced as the teacher from Kwekwe. He was shown an agreement of sale similar to the forged agreement and dissimilar to the typed one produced jointly in court by first and second defendants. He paid cession fee and top up. First defendant gave him a letter to enable him to pay endowment fee at the Ruwa Local Board. He paid endowment fee whereupon he built a house valued at USD40 000. He said he never suspected that there was anything wrong because first defendant created the impression that second defendant was a stranger to him. He handed over a sum of $4000 to first defendant which he in turn gave to second defendant.</p> <p>Fourth defendant then closed his case.</p> <p>            <strong>Seventh defendant testified as follows: - </strong>She went to plaintiff’s offices in search of a stand to buy. She was taken to Collins Chinzou’s office. Coliins Chinzou invited first defendant to his offices and asked him whether there were any stands available. First defendant said there was one. Mr Chinzou left and first defendant remained to help her. He pulled out a file. She had told first defendant how much she had. First defendant said he had identified a stand which was commensurate with her money. He offered her stand no 20563 measuring 200m2. She paid $3500 for the stand. She negotiated a reduction of cession fee from 600 or 650 to $350. She was then taken to the site by Victor Chinzou.</p> <p>            She identified her agreement of substitution with sixth defendant. She said she did not meet sixth defendant whom she believes had signed the agreement on a different day. In 2013 she paid a ‘top up’ amount of $250 whereupon first defendant gave her a letter which she took to the Ruwa Local Board. Utility bills from Ruwa board are now in her name. She said she was later summoned to plaintiff’s offices where the fraud was revealed to her. She believes the misunderstanding between plaintiff and first defendant should not prejudice her. She had no reason to be suspicious since she was attended to at plaintiff’s place of business and the director was present and attended to her. Under cross examination she said she had signed the agreement of substitution which bore sixth defendant’s signature because she believed that, that is how a cession is done. She did not receive a receipt for the USD3500 she paid to first defendant. Only the top up which she paid later was receipted. She was also given a copy of an alleged first agreement of sale. She could not explain how the cessionary agreement had two dates- i.e. 8 June 2011 and 8 June 2010. She did not seem to appreciate that the differences in dates were of significance. </p> <p>Seventh defendant then closed her case.</p> <p><strong>COURT’S FINDINGS AT THE END OF THE TRIAL</strong></p> <p>In summary</p> <p>            My findings at the end of plaintiff’s case remain relevant. Plaintiff called three witnesses. Collins Chinzou was completely unaware of the existence of counterfeit agreements of sale. He presented as a naïve person who had a lot of faith in corporate governance. The plaintiff was a vehicle through which Collins Chinzou and his late wife were running their family property business. Upon its incorporation, Mr Chinzou appointed his wife as the administrator with unfettered control of the plaintiff’s affairs and business. She remained at the helm of the plaintiff’s business during her life time. First defendant was a nephew of Collins Chinzou’s late wife. During her lifetime, the late Mrs Chinzou had occasionally invited the first defendant to help out at the business. When Mrs Chinzou died first defendant succeeded her as the administrator whereupon he inherited unfettered control of the plaintiff’s business and the vast discretionary powers formerly exercised by Mrs Chinzou.  All employees worked under his supervision and instruction. Collins Chinzou did not limit his powers. First defendant was related to Mrs Chinzou and it was not contested that she also put a lot of faith in him. It was clear from Collins Chinzou’s evidence that he was not likely to know of the counterfeit sales had it not been for the audit/reconciliation exercise undertaken by his son Broadwell Chinzou when he took over as administrator from first defendant. Collins Chinzou omitted to put in checks and balances. He reposed in the first defendant the same faith and trust that he had in his late wife. First defendant took advantage of the trust and conceived a plan to swindle the plaintiff. In his wife’s own words, the first defendant brought to her completed agreements of sale for her signature. It is therefore not correct that he only assisted her to complete plaintiff’s standard agreement of sale. In actual fact she was not present when the agreement templates were filled in. She never kept the originals of the agreements of sale. In her evidence second defendant never said she paid for the stands. Accordingly, there can be no sale to talk about with respect to stand numbers 20755, 20642 and 20797 Cranbrook Ruwa. The plaintiff established through irrefutable and cogent evidence that the agreements of sale were counterfeits since there are no evidence of valid agreements of sale between the plaintiff and second defendant with respect to those stands concerned. The only agreements that are available were proved to be counterfeits. The plaintiff also proved that the receipts which second defendant sought to rely on were forged. I have already discussed the legal position that where payment in the performance of a contract of sale is disputed, the onus is on the purchaser to prove payment.</p> <p>As soon as plaintiff proved that the purported disposal of stand No. 20755 to second defendant was fraudulent it followed that third defendant could not validly substitute her as the purchaser. Second defendant had no valid agreement (rights, interests and obligation) to assign to another party. The challenge to the agreement of substitution prepared by the first defendant whereby he substituted third defendant for second defendant as the purchaser of stand 20755 to dispose. The initial agreement of sale having been shown to be false and the alleged substituted purchaser (third defendant) having defaulted after being served with plaintiff’s summons. It is not known whether third defendant exists or signed the purported cession agreement because none confirmed the signature or actions attributed to him/her. Either he exists only on the papers prepared by the first defendant or if he exists, he is in wilful default.</p> <p>            I therefore find that the purported sale of stand No. 20755 Cranbrook Park Ruwa by plaintiff to second defendant did not take place and the agreement of sale on plaintiff’s records was forged. The subsequent agreement of substitution dated 4 February 2012 is therefore a nullity.</p> <p>             The plaintiff managed to prove that the agreement placed in its records purporting to be a sale to second defendant of Stand No. 20642 was also counterfeit. Details relating to clause 15 were missing. It had no clause 16 and 17. The last page was not numbered whereas all pages on the template were numbered. The second page was clearly plucked from somewhere and affixed to the agreement because it was identical to page 2 of the agreement for stand No. 20563 in every detail including cancellations and alterations. The last page had provision for an estate agent to sign which did not apply to direct sales conducted by plaintiff. Mobile number 0734 359 263 was not in existence in 2005 and yet the agreement was dated 2005. Receipt No. 210 had been fraudulently linked to the sale and purchase of stand 20642 yet it belonged to another purchaser known as Mary Mupinda. Second defendant did not have the original of the agreement of sale. She did not have proof that she paid the purchase, price. The purported cession was handled by Gabriel Mandombo who put his cell No. The agreement was back dated because the cell no. was used as new in 2014, 9 years later. I therefore had no difficulty in accepting that the agreement of sale for stand no 20642 was a fraud. It follows that forth defendant could not validly substitute the second defendant in as a purchaser of the stand because there was no valid agreement in the first place. Second defendant had no rights and interest to validly cede to fourth defendant. Fourth defendant however argued that that the plaintiff was estopped from denying the validity of the cession and that he (fourth defendant) acquired rights in terms of cession.</p> <p>It was submitted on his behalf that plaintiff’ business was conducted in such a way that fourth defendant as an innocent purchaser had reason to believe that the disposal was not above board. Counsel submitted that fourth defendant built a house worth USD40 000 at the stand because he believed all was above board. Counsel cited the case of <em>Chelly</em> v <em>Nandoo</em> 1974 (3) SA 13 as authority for the legal position that estoppel is a full defence to vindication. It is therefore a valid and recognized limitation to the owners right to vindicate. He submitted that the estoppel arose from the fact that first defendant had unfettered discretion. The absence of checks and balances was entirely plaintiff’s fault. Plaintiff was therefore open to fraud. Fourth defendant had no reason to doubt the validity of the agreement of substitution in view of the letterhead, payment of cession fee, payment of top up and the letter to the Ruwa Local board. He submitted that fourth defendant was entitled to assume that internal processes had been validly undertaken citing section 12 of the Companies Act [ Chapter 24:03] (now repealed and replaced).</p> <p><strong>“12 Presumption of regularity</strong></p> <p>Any person having dealings with a company or with someone deriving title from a company shall be entitled to make the following assumptions, and the company and anyone deriving title from it shall be estopped from denying their truth—</p> <p>(<em>a</em>) that the company’s internal regulations have been duly complied with;</p> <p>(<em>b</em>) ………..;</p> <p>(<em>c</em>) that every person whom the company, acting through its members in general meeting or through its board of directors or its manager or secretary, represents to be an officer or agent of the company, has been duly appointed and has authority to exercise the functions customarily exercised by an officer or agent of the kind concerned;</p> <p>(<em>d</em>) that the secretary of the company, and every other officer or agent of the company having authority to issue documents or certified copies of documents on behalf of the company, has authority to warrant the genuineness of the documents or the accuracy of the copies so issued;</p> <p>(<em>e</em>) that a document has been sealed by the company if it bears what purports to be the seal of the company attested by what purports to be the signature of a person who, in accordance with paragraph (<em>b</em>), can be assumed to be a director of the company:</p> <p>Provided that—</p> <p>(i) a person shall not be entitled to make such assumptions if he has actual knowledge to the contrary or if he ought reasonably to know the contrary;</p> <p>(ii) a …”</p> <p> </p> <p>Fourth defendant submitted that section 12 of the Companies Act quoted above applied because the second defendant’s claim to rights and interest in the property was based on an agreement on plaintiff’s files. There was therefore no lack of diligence that could be attributed to fourth defendant. Citing <em>MDC</em> v <em>President of Zimbabwe and Ors</em> HH 1291/05, fourth defendant resisted the declaratory order sought by plaintiff on the grounds that public policy militated against its grant at the instance of the plaintiff which had failed to put enough safeguards to ensure that the public would not be deceived.</p> <p>            This legal stance adopted by fourth defendant was apparent during his cross-examination of plaintiff’s witnesses, Collins Chinzou and Broadwell Chinzou. Fourth defendant’s handicap is that he did not plead estoppel as a defence. If anything he conceded and promised in his plea that as soon as the sale/purchase agreement claimed by second defendant was shown to be a fraud, he would not resist the plaintiff’s claim. He promised that he would instead seek compensation for the improvements he made at the stand from the first and second defendants. No changes had been made to the plea at the end of the trial. Fourth defendant is therefore bound by his plea.</p> <p>            Even if fourth defendant had raised the defence of estoppel on the grounds that he was an innocent purchaser who was also misled by plaintiffs’ conduct, he should have an onus to discharge. It is trite that in litigation, he who avers must prove. I have already quoted from the <em>South African Law of Evidence</em> by LH Hoffman and DT Zeffert at p356</p> <p>“Estoppel is in substance a defence (or reply) by way of confession and avoidance, which must be specifically pleaded….”</p> <p>See also Amler’s Precedents of Pleadings 4 ed Butterworts at p 137.</p> <p>“The essence of the doctrine of estopped by representation is that a person is precluded or estopped from denying the truth of representation previously made by him to another person if the latter, believing in the truth of the misrepresentation acted thereon to his detriment. <em>Aris Enterprises Finances Pty Ltd</em> v <em>Protea Assurance Co. Ltd</em> 1981 3 SA 274 (A) 29</p> <p>…if a party wishes to rely on stopped then party must plead it and prove its essentials.”</p> <p> </p> <p>            In this case defendant relies on estoppel by representation.</p> <p>At p 354 of <em>South African Law of Evidence</em> 4 ed by LH Hoffman and DT Zeffert</p> <p>“Estoppel by representation (to attempt one of those potted definitions that tend to be dangerous because they must be, of necessity, too terse) may be set up when a party is prevented from denying a representation, that he has previously made to another party, if the latter, in the belief that it was true, acted on it to his prejudice. The representation must have been of such a nature to be reasonably expected to mislead or to induce belief in the existence of particular facts, and in the case of vindicatory action, there must have been <em>culpa</em> on his part.”</p> <p> </p> <p>The fourth defendant not having specifically plead estoppel, the essentials of the estoppel he now relies on are not clear. Estoppel takes various forms. It is not clear whether the representation he alleged is that his induced to pay for the property by representation made to him by the plaintiff, what is referred to as representation “… orally, in writing, words or conduct provided it is an unequivocal statement of an existing fact.” see <em>South African Law of Evidence</em> ed by LH Hoffman and DT Zeffert at p 358 or representation through negligence in which case he would be saying he was a victim of second defendant’s fraud facilitated by the careless breach of duty of the plaintiff towards him. If the fourth defendant relies on the former, then he can only properly raise that defence against vindicatory action by second defendant who represented to him that she had rights in stand no 20462 when she didn’t. Plaintiff was equally a victim of a fraud committed by second defendant. Plaintiff did not receipt the purchase price. If the fourth defendant relies on representation through negligence, then he ought to have pleaded and demonstrated that plaintiff owed him a duty of care.</p> <p>             Fourth defendant consciously failed to raise and prove the defence of estopped preferring instead to recover from first and second defendant. Otherwise at law she was supposed to call upon the person from whom she acquired rights to her assistance in defending the title. As soon as second defendant’s title proved to be defective it became clear that as successor the fourth defendant could not have better rights. He could only succeed on other grounds of which none appear in his plea.</p> <p>            Stand No. 20563 This stand purported to have been sold to fifth defendant. The plaintiff managed to prove that the purported agreement with fifth defendant was counterfeit. It proved the following anomalies. The last page was not numbered yet the rest of the agreement had page numbers. The last page was in all probabilities imported from somewhere and affixed to.</p> <p>The agreement clause 2 was repeated. Page 2 of the agreement had striking. Similarities with the discredited agreement of sale for stand 20462 it contained the same cancellations and corrections. Like the fake agreement for stand 20462, details relating to clause 15 are missing clause 16 and 17 are missing. The provision for a registered agent is given to agreements drawn by plaintiff for direct sales. There was no proof of any payment by fifth defendant. Fifth defendant did not enter appearance to defend. Accordingly, plaintiff’s assertion that the purported sale was fictitious remains undisputed. First defendant stated that he did not prepare the agreement. At the end of the day plaintiff’s version of events was not controverted. The first defendant pleaded prescription as a preliminary issue. Prescription is a special plea which must be pleaded as such. See <em>Jennifer Nan Booker</em> v <em>Richard Mudhamda &amp; Ors</em> SC 5/18. </p> <p>“The defence of prescription should not be raised by way of exception but must be specially pleaded. The plea must set out sufficient facts to show on what the defence is based.  ... such a plea is provided for in the High Court rules 1971 order 21 r 137.”  </p> <p> </p> <p>‘In a plea of prescription the onus is on the defendant to show that the claim is prescribed.’</p> <p> </p> <p>The difficulty which confronted first defendant is that he raised the defence of prescription without doing so as a special plea.  Order 2 sets out the procedure regarding the adjudication of a special plea within dealing with the merits. He did not adopt that procedure. I therefore dealt with prescription as one of the issues at the trial. However, that did not absolve the first defendant of the onus on him to prove the essentials of prescription pleaded by him. It is incomprehensible that that first defendant who claims to have no knowledge of when the disputed agreement was created can prove when the period of prescription commenced to run. Accordingly, first defendant contradicted himself. His situation is further complicated by the fact that on the agreement dated 5 September 2005 was a cell 073 4359263 which was not yet in use in 2005. What it means is that the agreement was prepared later than the year 2005 after Telecel had moved from the prefix 023 to 073. The forged agreement was therefore backdated. The papers reveal that there was a cession on plaintiff’s purportedly by fifth defendant to sixth defendant dated 9 October 2007. The cession was disputed by the plaintiff. Fifth and sixth defendants did not appear to give evidence either as defendants or as seventh defendant’s witnesses to disprove plaintiff’s assertion/evidence disputing the cessions.</p> <p>Indeed, seventh defendant claimed that she acquired rights and interest from sixth defendant. At law she was supposed to call upon the person from whom she acquired rights to her assistance in defending the title.             See <em>Business Law in Zimbabwe</em> RH Christie at p 160-161:</p> <p>“The relationship between the buyer and seller … turns on what is usually described as the sellers guarantee or warranty against eviction</p> <p>…</p> <p>Eviction is interpreted in its broadest sense as meaning the total or partial loss of possession.”</p> <p>What it means a buyer threatened with eviction or a vindicatory action should seek protection from the person from he/she claims to have acquired rights.</p> <p>Seventh defendant claims to have acquired rights from sixth defendant. However, in her own evidence she never met Sixth defendant. Cession involves the substitution of a new creditor (the cessionary) for the original creditor (the cedent) the debtor remaining the same. See <em>Law of Contract in South Africa</em> 3 ed at p 515.             In this case there was no evidence from sixth defendant that he at any time plaintiff’s creditor and that they approached plaintiff and asked to be substituted by seventh defendants. Additionally, when seventh defendant pleaded as a self-actor she raised the defence of estopped, <em>albeit</em> in elegantly, she implied that because the cession was executed at plaintiff’s office, by an employee of the plaintiff and she relied on what was on the face of it a <em>bona fide</em> transaction the plaintiff was precluded from denying the truth of the representation. She therefore had the onus to prove the essentials of that defence. She therefore ought to have proved that she met sixth defendant who represented to her that he held rights and interest in the stand No. 20563 Cranbrook Ruwa and that the plaintiff owed her a duty of care in that regard.  Either seventh defendant was grossly negligent in purporting to deal with an unknown quantity or she was complicity in the fraudulent scheme. Her evidence departed from her plea. She testified that she had bought stand No. 20563 from the plaintiff and paid $3500 to first defendant. If indeed she intended to deal with plaintiff she would have expected a receipt for the payment. It would have been a different ball game had she produced plaintiff’s receipt for the purchase price. Any person who deals with a company and claims to have given hard currency to an employee of the company without receiving a receipt cannot possibly be genuine in his/her dealings.</p> <p>            In the result I find that plaintiff proved that plaintiff proved its case on a balance of probabilities and should succeed because seventh defendant has failed to discharge the onus upon her to prove the defence of estoppel.</p> <p>            Stand 20797</p> <p>Evidence led by the plaintiff established the following the first page of the template was competed by first defendant. Clauses 1a to 1e were repeated on the 2nd page and that was inconsistent with the plaintiff’s template. Page 7 was repeated and that is inconsistent with the plaintiffs’ template clauses 16 &amp; 17 were repeated.         The anomalies led me to accept the submission that the agreement was hurriedly Gobbled up when the audit was announced. The file contained receipt No. 1424 which the plaintiff proved to be forgery through the evidence Forensic Scientist. The receipt had been overwritten by first defendant. It was not first defendant’s duty to write receipts. In any event he could not have validly receipted his own payment. I have already observed that first and second’s proprietary rights were inseparable. In evidence, first defendant said he considered all properties acquired I his wife’s name as jointly owned property. The question documents examine actually prove that the signature of Sarah on the receipt was forged.</p> <p>I have no difficulty in accepting plaintiff’s assertion that the purported agreement found on plaintiff’s file was a counterfeit. The cedents did not defend.</p> <p>As stated earlier first and second defendants’ defence of prescription was dependent on them proving the date on which the agreements were prepared on a balance of probabilities. Plaintiff proved that the forged agreements were discovered in the year 2017 and there was evidence that they had been backdated.</p> <p><strong>DISPOSITION:</strong></p> <ol> <li>The first and second defendants’ defence that plaintiff’s various claims have prescribed be and is hereby dismissed. <ol> <li>      It is confirmed that the agreement of sale between plaintiff and second</li> </ol> </li> </ol> <p>Defendant dated 9 October 2002 for the sale of stand No. 20755 Cranbrook Ruwa a subdivision of Lot 1 of Cranbrook of Galway Estate held by the plaintiff under Deed of transfer 2938/1997 is a counterfeit and therefore null and void.</p> <p>2.2.   The subsequent substitution of the second defendant by the third defendant on the 4th February 2012 as the purchaser of stand no 20755 aforementioned be and is hereby confirmed a nullity.</p> <p>2.3       1st, 2nd and 3rd defendants shall pay the costs of suit jointly &amp; severally, one paying, the others to be absolved.                 </p> <p>            3.1       It is confirmed that the agreement of sale between plaintiff and second</p> <p>defendant dated 5 September 2005 for the sale of stand No. 20642 Cranbrook. Ruwa, a subdivision of Lot 1 of Cranbrook of Galway Estate held by the plaintiff under Deed of transfer 2938/1997 is a counterfeit and therefore null and void.</p> <p>3.2       The subsequent substitution of the second defendant by the fourth defendant on as the purchaser of stand 20642 aforementioned 10th September 2012 be and hereby confirmed a nullity.</p> <p>3.3       1st, 2nd and 4th defendants shall pay the costs of suit jointly &amp; severally, one paying, the others to be absolved.       </p> <p>            4.1       It is confirmed that the agreement of sale between plaintiff and fifth defendant</p> <p>dated 9 October 2002 for the sale of stand No. 20563 Cranbrook Ruwa a subdivision of Lot 1 of Cranbrook of Galway Estate held by the plaintiff under Deed of transfer 2938/1997 is a counterfeit and therefore null and void.</p> <p>4.2       The subsequent substitution of the fifth defendant by the sixth defendant as the purchaser of stand no 20563 aforementioned on the 9th June 2007 be and hereby confirmed a nullity.</p> <p>4.3       The substitution of the sixth defendant by the seventh defendant as the purchaser of the stand no 20563 on the 8th June 2010 be and hereby confirmed a nullity.</p> <p>4.4       1st, 5th, 6th and 7th defendants shall pay the costs of suit jointly &amp; severally, one paying, the others to be absolved.     </p> <p>5.1       It is confirmed that the agreement of sale between plaintiff and second defendant dated 3 March 2004 the sale of stand No. 20797 Cranbrook Ruwa a subdivision of Lot 1 of Cranbrook of Galway Estate held by the plaintiff under Deed of transfer 2938/1997 is a counterfeit and therefore null and void.</p> <p>5.2       The subsequent substitution of the second defendant by the eighth defendant as the purchaser of stand 20797 on the 8 the September 2011 be and hereby confirmed a nullity.</p> <p>5.3       1st, 2nd and 8th defendants shall pay the costs of suit jointly &amp; severally, one paying, the others to be absolved.                 </p> <p> </p> <p><em>Muvirimi Law Chambers, </em>plaintiff’s legal practitioners</p> <p><em>Lawman Chimuriwo Attorneys at law</em>, 1st &amp; 2nd defendants’ legal practitioners</p> <p><em>Ziumbe and Partners</em>, 4th defendant’s legal practitioners</p> <p><em>Musunga and Makaka Law Chambers, </em>7th defendant’s 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/2020/388/2020-zwhhc-388.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=85092">2020-zwhhc-388.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/2020/388/2020-zwhhc-388.pdf" type="application/pdf; length=731366">2020-zwhhc-388.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cession-0">Cession</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/effect-0">effect</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/validity-0">validity</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-1">what constitutes</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/nature-contract">Nature of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/whether-one-assignment-or-cession">whether one of assignment or cession</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/absolution-instance-%E2%80%93-principles">Absolution from the instance – principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-made-respect-ancillary-matter">application made in respect of ancillary matter</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/court-should-lean-favour-case-continuing">court should lean in favour of case continuing</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/plea-answer-summons">plea to in answer to summons</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/period-prescription">Period of prescription</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</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/bulawayo-high-court/2018/90">Tekere v Sibanda &amp; Another (HB 90-18, HC 1698/14) [2018] ZWBHC 90 (29 March 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2018/5-0">Brooker v Mudhanda &amp; Another (SC 5/18, Civil Appeal No. SC 457 &amp; 458/15) [2018] ZWSC 5 (05 February 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 15 Jun 2020 08:05:34 +0000 Sandra 9662 at https://old.zimlii.org Tommy v Gunn & 4 Others (HB 35-20, HC 2998/15) [2020] ZWBHC 35 (20 February 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/35 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>CHARISSA GAYNOR TOMMY</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>LINDY GUNN</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>MICHAEL J. GUNN</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>ASSISTANT MASTER OF THE HIGH COURT</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>REGISTRAR OF DEEDS</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>SHERIFF OF ZIMBABWE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 11 JUNE 2019 &amp; 20 FEBRUARY 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>D. Dube</em> for the plaintiff</p> <p><em>Tsumele</em> for the 1st and 2nd defendants</p> <p>No appearance for the 3rd, 4th &amp; 5th defendants</p> <p>            <strong>TAKUVA J:  </strong>Plaintiff issued summons on 12 November 2015 against 1st and 2nd defendants for :</p> <p>“(a)      An order declaring the verbal agreement of sale entered into between plaintiff and her late husband Richard Roberts on one hand and Lindy Gunn on the other in March 2004 regarding stand number 41 Hillside South Township 3 of Subdivision 5W of Matsheumhlope also known as 4 Clocolan Road, Burnside, Bulawayo binding on 1st and 2nd defendants for all intents and purposes.</p> <p>(b)        An order that 2nd defendant signs all papers that need to be signed in any public office, be it City of Bulawayo, Registrar of Deeds or ZIMRA to facilitate the transfer of the title of the property described in paragraph (a) above from his name to that of the plaintiff.</p> <p>(c)        An order that should 2nd defendant fail to act as ordered in paragraph (b) above and within 5 days of the order being served on him, the 5th defendant be and is hereby ordered to sign all such papers that may need to be signed by 2nd defendant, to give effect to the order as contained in paragraph (a) above.</p> <p>(d)       Costs of suit against 1st and 2nd defendants, <em>in solidium</em> at an attorney and client scale only if they oppose this claim.”</p> <p> </p> <p>The 1st and 2nd defendants entered appearance to defend, requested for and were supplied with further particulars.  Subsequently, 1st and 2nd defendants filed a special plea in bar and plea on the merits.  With the plaintiff’s agreement, the special plea was set down for hearing.</p> <p> </p> <p>The facts of this matter are simple.  The plaintiff and her late husband Richard Roberts entered into a verbal agreement to purchase the house mentioned in the summons.  The agreement was entered into sometime in March 2004.  It was agreed that the purchase price was BNP 41 000-00, payment of storage charges of ZWD$67 599 146.04 and pay off of a mortgage bond in the sum of ZWD$3 575 000-00 together with its cancellation costs of</p> <p>ZWD$4 500 000-00.</p> <p> </p> <p>            Plaintiff performed her side of the contract and obtained vacant possession of the house as the new owner although real rights over the property had not been transferred.  In terms of the verbal agreement, the parties did not agree on the time frame or period within which transfer into the names of plaintiff and her late husband will be effected.  As a result, plaintiff who is also the surviving spouse of her late husband has now put 1st and 2nd defendants <em>in mora</em> claiming that this Court declares the verbal agreement binding and also claiming specific performance for transfer of the property into her name.</p> <p>            First and second defendants’ special plea is anchored on the following grounds;</p> <ol> <li>The plaintiff’s claim has prescribed.</li> <li>Plaintiff has no <em>locus standi</em> to act for and on behalf of the late Richard Roberts and,</li> <li>The alleged agreement of sale is illegal.</li> </ol> <p> </p> <p>As regards prescription the argument is that since the agreement was entered into in March 2004 and summons issued in November 2015, the plaintiff’s claim has prescribed.  Reliance was placed on section 15 of the Prescription Act Chapter 8:11 in particular paragraph (d) which reads;</p> <p>“(d) except where any enactment provides otherwise, three years, in the case of any other debt.” (my emphasis)</p> <p> </p> <p>Plaintiff was said to have no <em>locus standi</em> to act for and on behalf of the late Richard Roberts because her Letters of Administration did not authorize her to administer the estate of the late Richard Roberts.  It was further argued that plaintiff was never at any point in time appointed as an Executrix Dative in the estate of her husband held under DRB 252/14.  Plaintiff was issued with a Certificate of Authority in terms of section 32 of the Administration of Estates Act.  That certificate granted plaintiff authority to deal only with the deceased’s motor vehicle.  Therefore, plaintiff has no <em>locus standi</em> to institute these current proceedings on behalf of the late Richard Roberts as she is not an Executrix of the estate.</p> <p> </p> <p>The illegality according to the defendant arises from the fact that the  house was sold in foreign currency without authority to do so from the Reserve Bank of Zimbabwe in violation of section 4 of the Exchange Control Regulations, 1996 SI 106/1996.  Defendants relied on <em>Dube </em>v <em>Khumalo</em> 1986 (2) ZLR 103 (SC) at 109 D-F and <em>Gambiza </em>v <em>Tavaziva</em> HH 109/2008.</p> <p> </p> <p>Finally, it was alleged that the 1st defendant had no capacity to sell the immovable property because the property is registered in the 2nd defendant’s names.  It was further contended that the order by the Botswana High Court only granted 1st defendant with personal rights in the immovable property as against the 2nd defendant.  These rights, so the argument went cannot be enforced in Zimbabwe, in the absence of a Court registering the divorce order – see order 37 of the High Court Rules 1971 and Civil Matters ( Mutual Assistance) (Chapter 8:02).</p> <p>The plaintiff strongly opposed the special plea urging the Court to dismiss it and refer the matter for trial to be determined on the merits.  The issues for determination in this application are the following;</p> <p>1.         Whether or not the plaintiff’s claim has prescribed when there was no agreement on when transfer was supposed to be effected?</p> <p>2.         Whether or not plaintiff has <em>locus standi in judicio</em>?</p> <p>3.         Whether or not the sale of the immovable property was an illegal transaction?</p> <p> </p> <p>I now deal with the issues <em>seriatum</em>.</p> <p> </p> <p><strong>PRESCRIPTION</strong></p> <p>            In terms of section 15 (d) of the Prescription Act <em>supra</em> prescription commences to run as soon as the debt becomes due meaning that from the date it becomes immediately claimable by the creditor and immediately payable by the debtor – see <em>Desai</em> v <em>Desai NNO &amp; Others</em> 1996 (1) 8A 141 (SCA) at 146-147A.</p> <p> </p> <p>            What should be noted <em>in casu</em> is that the 1st and 2nd defendants were never placed <em>in mora</em> by the plaintiff over the transfer of the property into her name until the 12th of November 2015 when she caused summons to be issued seeking <em>inter alia</em> specific performance.  Equally noteworthy is the fact that in the verbal agreement denied by 1st and 2nd defendants, plaintiff claims that the parties did not agree on the period or time frame on which transfer should be passed to the purchasers.  In that regard, I take the view that the obligation to pass transfer and payment of related costs by the 1st and 2nd defendants does not constitute a debt and therefore prescription does not commence to run until the creditor has demanded performance.</p> <p> </p> <p>            The principle was outlined by GUBBAY CJ (as he then was) in <em>Ashanria</em> v <em>Patel &amp; Others</em> 1991 (2) ZLR 276 (s) in the following words;</p> <p>“The general rule is that where the time of performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or soon thereafter as is reasonably possible in the circumstances.”</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>It follows that in the absence of a specific date for transfer in the agreement, the defendants were supposed to be placed <em>in mora</em> first and prescription will begin to run.  It is not a simple question of looking at the calendar and start counting up to three years and then claim prescription.  It seems to me that the word “debt” equates to a cause of action and not a right of action.  Therefore, the right to claim performance in terms of an agreement ordinarily becomes due according to its terms or if nothing is said, within a reasonable period – see <em>Hanuscke Belleggings CC</em> v <em>Kungwini Local Municipality</em> (2012) ZASCA 112.</p> <p> </p> <p>The point is that the obligation to transfer property where no date of transfer has been agreed does not amount to a debt that prescribes within a period of three years as contemplated by section 15 of the Prescription Act.  Accordingly, prescription cannot extinguish the right of action of transfer of property into the name of the plaintiff by the 1st and 2nd defendants. I find therefore that the claim for specific performance for transfer of the property into plaintiff’s names has not prescribed.</p> <p> </p> <p><strong>LOCUS STANDI</strong></p> <p>            In its stark naked form, <em>locus standi</em> simply means a direct and substantial or peculiar interest in the subject matter.  In other words, one must demonstrate how he or she is going to be affected by the decision of the court – see <em>Minister of Education, Arts and Culture</em> v <em>ZIMTA </em>1992 (2) ZLR 48.</p> <p> </p> <p>            In the present matter, it is common cause that plaintiff is the surviving spouse of the late Richard Roberts.  It is accepted that as the sole surviving spouse, she is a beneficiary in her late husband’s estate.  Plaintiff was issued with Letters of Administration by the Assistant Master of the High Court in the form of a Certificate of Authority to deal with the estate of her late husband under DRB 252/2014.  I find that plaintiff has <em>locus standi</em> in that she has a direct and substantial interest as the sole surviving spouse of the late Richard Roberts to persue specific performance of transfer of the immovable property in dispute into her name.</p> <p> </p> <p> </p> <p><strong>ILLEGALITY OF THE TRANSACTION</strong></p> <p>            In view of the <em>maxim in pari delicto esti potior condition possedentis</em>, the submission that the contract is tainted with illegality becomes a triable issue.  For 1st defendant to raise this argument means that she is admitting that the <em>pretium</em> was paid in foreign currency.  It is common cause that at the time of the agreement, 1st defendant was resident in Botswana.  It appears that for the <em>pretium</em> to be paid in Botswana Pula, the parties must have agreed that it be so paid.  That being the case, the court must guard against doing an injustice detrimental to one party and at the same time unjustly enriching the other by upholding a special plea on the basis of illegality.  This in my view is why STRAFFORD CJ made the following comments in <em>Tajbhay </em>v <em>Cassim</em> 1939 AD 537 at 544-545:</p> <p>“Courts of law are free to reject or grant a prayer for restoration of something given under an illegal contract, being guided in each case by the principle which underlies and inspired the maxim.  And in this last connection I think a court should not disregard the various degrees of turpitude in delictual contracts.  And when the delict falls within the category of crimes, a civil court can reasonably suppose that the criminal law provided an adequate deterring punishment and therefore, ordinarily speaking, should not by its order increase the punishment of the one delinquent and lessen it of the other by enriching one to the detriment of the other.  And it follows from what I have said above, in cases where public policy is not foreseably affected by a grant or refusal of the relief claimed, that a court of law might well decide in favour of doing justice between the individuals concerned and so prevent unjust enrichment.” (my emphasis)  </p> <p> </p> <p>            Similarly, the circumstances of this case require the court to exercise its discretion but only after listening to <em>viva voce</em> evidence from all the concerned parties.  The 1st and 2nd defendants should not be permitted to thwart plaintiff’s claim for specific performance using illegality as a special plea.</p> <p> </p> <p>            In the circumstances, the exceptions taken are without merit and are accordingly dismissed with costs.  The matter is referred for trial.</p> <p> </p> <p><em>Mathonsi Ncube Law Chambers</em>, plaintiff’s legal practitioners</p> <p><em>Dube-Banda, Nzarayapenga &amp; Partners</em>, 1st and 2nd defendants’ 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/bulawayo-high-court/2020/35/2020-zwbhc-35.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22302">2020-zwbhc-35.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/bulawayo-high-court/2020/35/2020-zwbhc-35.pdf" type="application/pdf; length=138099">2020-zwbhc-35.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/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/executoradministrator-deceaseds-estate">Executor/Administrator of deceased&#039;s estate</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claims-made-behalf-estate">claims made on behalf of estate</a></li><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/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/enforceability">Enforceability</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/illegal-contract">illegal contract</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale-immoveable-property">sale of immoveable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/specific-performance">Specific performance</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/locus-standi-0">Locus standi</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/plea-0">Plea</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription-plea">prescription (Plea)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/special-pleas-exceptions-and-applications-strike-out">special pleas, exceptions and applications to strike out</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/period-prescription">Period of prescription</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span> Wed, 11 Mar 2020 09:47:10 +0000 Sandra 9546 at https://old.zimlii.org Vaghmaria v Vaghmaria & 3 Others (HB 37-20, HC 2371/19) [2020] ZWBHC 37 (27 February 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/37 <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>MOIDEEN MAHENDRA VAGHMARIA</strong></p> <p> </p> <p> </p> <p><strong>Versus </strong></p> <p> </p> <p> </p> <p><strong>DARSHAN MADANLAL VAGHMARIA</strong></p> <p> </p> <p><strong>AND</strong></p> <p> </p> <p><strong>NEEMA MADANLAL DULABH</strong></p> <p> </p> <p><strong>AND </strong></p> <p> </p> <p><strong>BHANUMATI MADNALAL VAGHMARIA</strong></p> <p> </p> <p><strong>AND</strong></p> <p> </p> <p><strong>THE REGISTRAR OF BIRTHS AND DEATHS N.O</strong></p> <p> </p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MOYO J</p> <p>BULAWAYO 11 &amp; 27 FEBRUARY 2020</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>Advocate G Nyoni</em>, for the applicant</p> <p><em>Advocate T Mpofu instructed by Ms S Ngwenya, </em>for the 1st – 3rd respondents</p> <p> </p> <p>            <strong>MOYO J:</strong>                   In this matter the applicant seeks an order against the 3 respondents that they submit to DNA tests to establish applicant’s paternity and that if such paternity is so established, 4th respondent be ordered to register the late Madanlal Prag Vaghmaria as applicant’s biological father and that applicant pays for the costs of the DNA tests.</p> <p>            In paragraph 7 of the founding affidavit, the applicant says that he has a very good reason to believe that 1st and 2nd respondents are his half siblings as they share with him a biological father, one Madanlal Prag Vaghmaria whom he believes is his biological father.  He further says he has a right to establish his paternity and to enjoy the incidental rights that flow therefrom including the constitutional right to family.  He further says that other than through an order of this court, he has no other way of establishing his paternity and to cause</p> <p> </p> <p>4th respondent to register such information in his birth certificate. The applicant further avers that he was born on 18 February 1967 and that his name was recorded as Moideen Manuel.  That he has since changed his name through a Notarial Deed to Moideen Mahendra Vaghmaria.  He says he was born out of wedlock and his paternity was not so registered in the birth certificate because his parents did not attend to do so.  He further avers that his biological parents had religions incompatibility hence it became impossible to register his paternity seeing he was born out of wedlock.  The applicant’s mother died on 30 April 2004 and his father died on 1 February 2015.  Applicant further avers that during her lifetime, his mother told him that his biological father was the now late Madanlal Prag Vaghmaria.  He further avers that his late father, per information given to him by his late mother, told him that the late Madanlal Prag Vaghmaria used to pay maintenance for him until he attained the age of 18 years.  He says he tried to uplift the records for the year 1967, which could no longer be obtained from the relevant offices.  He has further attached an affidavit by his late mother’s friend to confirm the issue of maintenance payments.</p> <p>            He further avers that he approached the late Madanlal Prag Vaghmaria concerning the matter of his (applicant’s)) paternity but that while he did acknowledge, he refused to formally register the applicant as his son.  He further avers that he has continuously approached 1st respondent on numerous occasions about this matter and that 1st respondent refused to assist him.  The 1st respondent and the other 2 respondents opposed the application on the basis that applicant’s claim has prescribed, among other reasons.  That applicant is now 52 years old, having been born on 18 February 1967 and that he attained the age of majority 34 years ago.  That if applicant wanted to ascertain his paternity he must have done so while his parents were alive and that no reasons have been given for applicant’s 34 year wait.</p> <p>            Counsel for the respondents argued at the hearing that in fact applicant’s claim is prescribed as it befits the definition of a debt as defined in section 2 of the Prescription Act.  Respondent’s Counsel avers that the applicant’s need for correct paternity details, and a right to a family arose, 34 years ago when he became a major and realised that his paternity was not registered.  Respondent’s Counsel contends that the applicant sat back and did nothing for 34 years until when the parties who should be responsible for answers on his paternity both died.  Applicant’s Counsel argued that the claim could not have prescribed because it is a</p> <p> </p> <p>right, a constitutionally entrenched right and that the right became available in 2013 with the new constitution and that it was only exercisable then.  Respondent’s Counsel submitted that even if it were to be argued that the right became available in 2013, prescription still applies because the application before me was only filed in October 2019, six years down the line.</p> <p>            Applicant’s Counsel did not present to this court authorities to support the contention that a right exercisable against another, is not a debt and cannot prescribe.  Yet the respondent’s Counsel did provide authority for the contention he made that is the case of <em>Taruona</em> v <em>Zvaredzana &amp; Others</em> HH 87/12 which is authority for the position that a right also prescribes.  In that case it was held that a right to directorship in a company, prescribed where a director did not take action within a period of 3 years.</p> <p>            On the other hand, applicant’s Counsel, did not respond particularly to this point and the case authorities thereto, an assertion was simply made that neither the passage of time nor death of applicant’s biological parents ought to stand in the way of applicant establishing his paternity.  I was not favoured with an authority to support this contention neither have I stumbled upon one in my research.  I am therefore unable to use the applicant’s mere assertion as precedent.  The Supreme court in the case of <em>Brooker &amp; Others</em> v <em>Mudhanda &amp; Others</em> SC 5/18, agreed with the position that even rights to claim ownership of property do prescribe save for the exception that in certain instances the debtor has to be placed <em>in mora</em> first before prescription runs.</p> <p>            In the case before me applicant has always been aware of his status from the time he became a major 34 years ago.  He even says his mother who died as early as 2004 told him that the now late Madanlal Prag Vaghmaria was his biological father.  He then states in paragraph 8:10 of his founding affidavit that he did approach the now late Madanlal Prag Vaghmaria concerning the registration of his paternity who refused to co-operate and said it was too complicated a process to embark on.  At this juncture, one would say his cause of action then arose with certainty.  The now late Madanlal Prag Vaghmaria specifically refused to give the applicant his rights to paternity upon demand.  Therefore applicant need not have waited beyond then.  Even if we are not aware at what stage applicant did so, we however know from the facts that the now late Madanlal Prag Vaghmaria died on the 1st of February 2015, when the new Constitution was already in place and he denied him the right to the</p> <p> </p> <p>registration of his paternity in specific terms.  This means in essence that even if we are to assume that the now late Madanlal Prag Vaghmaria denied him such right in 2015 just before he died, the claim would still have prescribed by the time this application was issued in October 2019, 4 – 5 years down the line.</p> <p>            Applicant having made no case at all against the claim of prescription by the respondents, and the legal position on prescription being clear in our law and from the cases I have referred to herein, I find that respondent’s contention on prescription is thus correct.</p> <p>            I accordingly uphold the point <em>in limine</em> raised by the respondents and I will dismiss applicant’s claim with costs.</p> <p> </p> <p> </p> <p><em>Webb, Low &amp; Barry</em>, applicant’s legal practitioners</p> <p><em>Messrs Coghlan &amp; Welsh</em>, 1st – 3rd respondent’s legal practitioners</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/bulawayo-high-court/2020/37/2020-zwbhc-37.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19277">2020-zwbhc-37.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/bulawayo-high-court/2020/37/2020-zwbhc-37.pdf" type="application/pdf; length=284380">2020-zwbhc-37.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/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/child-family-law">Child (FAMILY LAW)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute-paternity">dispute as to paternity</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/registration-birth">registration of birth</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/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/period-prescription">Period of prescription</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span> Wed, 11 Mar 2020 08:20:52 +0000 Sandra 9544 at https://old.zimlii.org Mandizvidza v Mangenje (HH 45-20, CIV 'A' 123/17) [2020] ZWHHC 45 (16 January 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/45 <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>                                                                                                                                                                                                     GAYLORD MANDIZVIDZA</p> <p>and</p> <p>DONALD MANGENJE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIRAWU-MUGOMBA &amp; MANZUNZU JJ</p> <p>HARARE, 11 July 2019 &amp; 16 January 2020</p> <p> </p> <p><strong>Civil Appeal</strong></p> <p><em>E Mubaiwa,</em> for the appellant</p> <p><em>H Mukonoweshuro</em>, for the respondent</p> <p> </p> <p> </p> <p>MANZUNZU J This is an appeal against the judgment of the magistrate sitting at Harare on 3 April 2017 where the court upheld the special pleas of res judicata and prescription.</p> <p>Six grounds of appeal were raised against the judgment before the 2nd ground was abandoned at the hearing. The grounds of appeal are somewhat unusually couched in that each is preceded with a preamble of evidence meant to demonstrate the alleged misdirection by the magistrate. We did not find that to be fatal to the grounds of appeal.</p> <p>The background of this case is largely common cause. During the period 2007 and 2014 the appellant leased his house to the respondent through a written lease agreement. The respondent vacated the leased premises on 30 June 2014. It is also not in dispute that during the lease period the respondent changed a mono pump to the borehole and replaced it with a submissible pump and replaced a crastermatic pump to the swimming pool with an ordinary pump. These changes were done in contravention of clause 8 of the lease agreement which required prior written consent of the appellant. The respondent did not restore the fixtures to their original position, as per clause 8 of lease agreement, when he vacated the premises.</p> <p>In 2014 the appellant sued the respondent in the Magistrate Court under Case No. 23625/14 for, inter alia, repair cost to the borehole pump. The court then ordered respondent to pay the appellant “the sum of $50.00 being the cost of installation of the borehole pump.”</p> <p>In the case which is subject of this appeal, the appellant sued the respondent in 2016 under Case No. 5770/16 for the cost of restoring a mono pump to the borehole and crastermatic pump to the swimming pool. The appellant’s claim was resisted by the respondent who raised the defence of res judicata in respect to the borehole claim and prescription in respect to both the borehole and swimming pool claims.</p> <p>The matter was argued before the court <em>a quo</em> as a stated case to decide the special pleas. After hearing the parties the magistrate upheld the special pleas and as would ordinarily follow the appellant’s claims in respect to the borehole and swimming pool failed on that basis.</p> <p>Aggrieved by the decision the appellant lodged this appeal and raised the following grounds of appeal:</p> <ol> <li>That the 2014 claim in respect to the borehole was not identical to the 2016 claim.</li> <li>That appellant was unaware of when respondent effected the pump replacements.</li> <li>That the court a quo ought to have called <em>viva voce</em> evidence to resolve the factual issue of when appellant became aware of the pumps being replaced.</li> <li>That the cause of action arose when the lease terminated and not during the subsistence of the lease.</li> <li>That the court failed to find in favour of appellant as to when pumps were replaced.</li> </ol> <p><em>RES JUDICATA</em></p> <p>The requirements for this plea are settled. For one to succeed one must show that:</p> <ul> <li>The action is between the same parties</li> <li>The two actions must concern the same subject matter</li> <li>The actions must be founded upon the same cause of action.</li> </ul> <p>See the case of <em>Flowerdale Investments (Private) Limited &amp; Ano</em>r v <em>Bernard Construction (Private) Limited  &amp; 2 Others</em>, SC 5/09 and the following authorities cited therein: <em>Hiddingh v Dennysen</em> 3 SC 424 at 450; <em>Bertram </em>v<em> Wood</em> 10 SC 180; <em>Pretorius </em>v<em> Divisional Council of Barkly East</em> 1914 AD 407 at 409; <em>Mitford’s Exors </em>v<em> Elden’s Exors</em> 1917 AD 682; <em>Le Roux v Le Roux</em> 1967 (1) SA 446 (AD); and <em>Voet</em> 44.2.3.</p> <p>The fact that the action is between the same parties and concerns the same subject matter is not in dispute, that is in relation to the borehole pump. In respect to the cause of action the appellant argued that in MC 23625/14 the appellant claimed there was damage to the borehole pump and wanted to be paid the repair cost. This is the submissible pump installed by the respondent during the tenure of his lease. The court determined the issue and granted appellant $50 for such repairs. It is further argued that the MC 5770/16 claim, while it relates to the same borehole, is now based on clause 8 of the lease agreement in that it seeks the replacement of the submissible pump with the mono pump.</p> <p>In arriving at the conclusion that the claim was res judicata this is what the magistrate said in his judgment; “It is to be noted that the swimming pool pump was not in issue in case 23625/14, which only related to the borehole pump, for which repairs were being sought. Regarding cause of action, it is apparent that in 23625/14, plaintiff was seeking either compensation or restoration (repairs). In <em>casu</em>, plaintiff is seeking compensation only (replacement). The claims with regards to the borehole only, therefore overlap, as far as cause of action is concerned, with respect to the common claim for restoration (repairs). What this means, in respect of the borehole pump, is that plaintiff is again claiming upon the same cause of action as he did in 2014.”</p> <p>Respondent argued in support of the judgment of the court <em>a quo</em>. The written submissions were not detailed enough to deal with the specific claims in respect to the two matters. Instead the submissions transgressed to the doctrine of peremption which was also argued before the magistrate. However, the court <em>a quo</em> did not make any decision on the applicability of the doctrine and its end result. In any event no appeal lies against the court’s decision on this doctrine. We find no need to pursue it in this judgment.</p> <p>We disagree with the court <em>a quo</em> in its finding that res judicata had been proved by the respondent. Clearly the magistrate misdirected himself in the analysis of evidence and the conclusion that the claim on the borehole was <em>res judicata</em>. There are two distinct causes of action as correctly pointed out by the appellant, one for the cost of repairing the damaged borehole pump and the other for replacement/restoration cost. While the defence of <em>res judicata</em> did not succeed in the court <em>a quo</em>, that did not preclude the respondent from raising any other valid defence to the claim.</p> <p>The court <em>a quo</em>’s decision on res judicata ought to be set aside.</p> <p>PRESCRIPTION</p> <p>The appellant’s claim is subject to a three-year prescription period. The issue before the court <em>a quo</em> was to determine when prescription began to run. In its judgment the court a quo was correct in realizing that the claim was subject to the three year prescription period. The judgment noted, “The matter was instituted in 2016, which would mean that the cause of action should have arisen not prior to 2013.”</p> <p>The issue became that of knowledge on the part of the appellant as to when he became aware of the replacement of the pumps by the respondent. The contention before the court a quo by the respondent was that he replaced the pumps in 2009 and 2010. He argued that the appellant ought to have knowledge of that replacement, according to the judgment, because he had the right of inspection of the property in terms of clause 13 of the agreement. The appellant had denied knowledge of the changes but argued that even if that knowledge was available the cause of action only arose when the lease agreement was terminated. He relied on clause 8 of the agreement which we have decided to recite hereunder; it reads in part; “The lessee shall not make any alterations, additions or improvements to the premises without the prior written consent of the lessor…… The lessee shall, if so required by the lessor, at its own cost remove at the expiration of the lease all movable fixtures and fittings which it may have installed in the premises, making good any damage thereby caused to the premises, and shall reinstate any fixtures and fittings of the lessor which the lessee may have removed or disconnected during the lease.” (underlining is our own).</p> <p>The only issue the magistrate was faced with was to determine as to when the cause of action arose. It was necessary to determine this fact because it will then allow the calculation of the prescription period.  The court <em>a quo</em> heavily relied upon clause 13 of the lease agreement which deals with the right of access to the premises by the appellant. On the basis of that the court concluded; “Even assuming that the pumps were not replaced by defendant in 2009 or 2010, one would still expect that plaintiff should have been able to discover the anomaly before the prescription threshold of 2013.” We were at a loss with this reasoning. The issue is not that one ought to but rather whether there was evidence to prove that he knew.</p> <p>The appellant argued that there was factual deadlock of when appellant became aware of the change to the pumps. In our view failure to call viva voce evidence is of no consequence to this appeal. In our considered view whether or not appellant was aware of the changes in 2009 or 2010 it still takes us to the next stage of when did the cause of action arise. Did it arise in 2009 and 2010 when appellant is said have knowledge or at some later stage?</p> <p>The appellant argued that with or without knowledge on the part of appellant the cause of action arose when the lease was terminated. The respondent’s argument which is not tenable is that because changes were made without the prior written authority by appellant then appellant cannot rely on clause 8 at the termination of the lease for restoration of the original pumps. Respondent cannot be heard to say so because he breached the condition of clause 8 for which he now seeks to be a beneficiary for his breach. Certainly, that could not have been the intention of the parties.</p> <p>We agree with the position taken by the appellant that a reading of clause 8, (cited supra) is clear as to when the cause of action arose. A close look at the underlined words will show that the cause of action can only arise after the lease has terminated because of the words “removed or disconnected during the lease.”</p> <p>The court <em>a quo</em> therefore misdirected itself in its finding that the period of prescription started to run in 2009 and 2010.</p> <p>Consequently, we find that there is merit in this appeal. Accordingly;</p> <p> </p> <p>            1.         The appeal succeeds with costs,</p> <p> </p> <p>2.         The judgment of the court <em>a quo</em> be and is hereby set aside and substituted with the following;</p> <p>The special pleas of <em>res judicata</em> and prescription be and are hereby dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p>CHIRAWU-MUGOMBA J agrees……………………..</p> <p> </p> <p> </p> <p><em>V Nyemba &amp; Associates</em>, appellant’s legal practitioners</p> <p><em>H Mukonoweshuro &amp; Partners</em>, respondent’s legal practitioners</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/2020/45/2020-zwhhc-45.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23434">2020-zwhhc-45.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/2020/45/2020-zwhhc-45.pdf" type="application/pdf; length=322691">2020-zwhhc-45.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/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/plea-0">Plea</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/special-pleas-exceptions-and-applications-strike-out">special pleas, exceptions and applications to strike out</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/res-judicata">Res judicata</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/essentials-res-judicata">essentials of res judicata</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-res-judicata">principles (Res judicata)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-res-judicata">requirements for (Res judicata)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span> Wed, 29 Jan 2020 15:15:45 +0000 Sandra 9472 at https://old.zimlii.org Gumbochuma v ZETDC (HMA 52-19, HC 109/18) [2019] ZWMSVHC 53 (08 November 2019); https://old.zimlii.org/zw/judgment/masvingo-high-court/2019/52 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>JUSTICE GUMBOCHUMA</p> <p>versus</p> <p>ZIMBABWE ELECTRICITY TRANSMISSION &amp; DISTRIBUTION COMPANY</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>MASVINGO, 23 July 2019</p> <p> </p> <p>Date of written judgment 8 November 2019</p> <p> </p> <p><strong>Civil trial </strong></p> <p> </p> <p>Mr <em>L. Muvengeranwa</em>, for the plaintiff</p> <p>Mr <em>J. Zviuya</em>, for the defendant</p> <p> </p> <p> </p> <p>MAFUSIRE J</p> <p>[1]        This was an action matter. On the date of trial, it was postponed <em>sine die</em> by consent. The defence had raised a special plea of prescription. The plaintiff was not conceding it. In terms of a timetable agreed upon, the parties would file their written submissions. Judgment on prescription would be delivered on the papers. This now is that judgment.</p> <p> </p> <p>[2]        The facts were common cause. The parties filed a statement of agreed facts. They were these. The defendant is a private company. It is responsible for, among other things, the distribution of electricity nationwide. In this regard it runs and maintains, among others, electricity transmission conductors. The plaintiff sued it for damages arising out of injuries sustained by him when he had come into contact with live conductors.</p> <p> </p> <p>[3]        The plaintiff’s case was this. On 11 March 2009 he was herding cattle in Mashava. He came into contact with naked electricity conductors. They were live and concealed by grass in the grazing field. He was electrocuted. He suffered severe burns from the chest to the knees. He stayed in hospital for six months. His right hand had to be amputated. The degree of his disability as a result of those burns was estimated at 40%.</p> <p> </p> <p>[4]        The plaintiff alleged the defendant had been negligent in the following respects:</p> <p> </p> <ul> <li>it had failed to inspect and detect that its conductors had fallen onto the ground;</li> <li>it had failed to secure the conductors so that they would not fall to the ground;</li> <li>it had failed to clear the grass along its transmission lines so that fallen conductors could easily be detectable.</li> </ul> <p> </p> <p>[5]        The plaintiff assessed his damages at $60 334 for pain and suffering, medical expenses and the loss of amenities of life.</p> <p> </p> <p>[6]        The plaintiff’s summons was issued and served in March 2018. That was exactly nine years after the incident. The defendant raised the special plea of prescription. Generally, in terms of the Prescription Act, <em>Cap 8:11, </em>an ordinary debt becomes prescribed after the lapse of three years from the date when the cause of action arose. The defendant alleged the plaintiff’s cause of action arose on the date of the incident.</p> <p> </p> <p>[7]        On the merits, the defendant completely denied the plaintiff’s allegations. It said he had been the author of his misfortune. He had wanted to steal the electricity conductors. The defendant denied they had fallen onto the ground. It claimed the plaintiff had tried to pull them down with his axe from a height of about 2.5 metres above the ground. That was when he had been electrocuted. The defendant had actually reported the plaintiff to the police for theft. He had been arrested. But in September 2016 the police had let him go for lack of evidence. That was seven years later.</p> <p> </p> <p>[8]        In his answer to the defence of prescription, the plaintiff maintained that the cause of action had arisen in September 2016 when he had been cleared by police. He said prescription had not begun to run when the incident had occurred. Relying on cases such as <em>Dube v Banana</em> 1998 (2) ZLR 92 (H), <em>Mukahlera v Clerk of Parliament &amp; Ors</em> HH 107/07 and <em>Local Authorities Pension Fund v Nyakwawa &amp; Ors</em> 2015 (1) ZLR 103 (H) which defined “cause of action” as the combination or entire set of facts that are material for the plaintiff to prove in order to succeed in his action, the plaintiff argues that until the police had dropped the criminal charges against him, he would not have been able to discharge the burden upon him that it had been the defendant’s negligence that had caused him the injury and consequent loss to him.</p> <p> </p> <p>[9]        The plaintiff further relies on the cases of <em>Thompson v Minister of Police</em> 1971 (1) SA 371 (E) and <em>Manjoro v Minister of Home Affairs &amp; Ors</em> 2015 (1) ZLR 872 (H) for the argument that no action lies until the criminal proceedings have terminated in favour of a plaintiff.</p> <p> </p> <p>[10]      Plainly, the plaintiff’s argument on prescription is ill-conceived. His cause of action is manifestly prescribed. Both parties are agreed that the plaintiff’s cause of action is a ‘debt’ within the meaning of s 2 of the Prescription Act, namely being a “<em>debt</em>” that may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise. The plaintiff’s claim arises from delict. It is an ordinary debt. The period of prescription is three years.</p> <p> </p> <p>[11]      The plaintiff’s cause of action arose when the incident happened. In terms of s 16 of the Prescription Act, prescription begins to run as soon as a debt is due. A debt is due when the plaintiff has gathered all the entire set of facts about the cause of action as are material to prove his or her claim. In this case, the plaintiff’s cause of action was complete when he had gathered all the information as to, among other things, whose electricity conductors they were; allegedly that they had been in a state of neglect; allegedly that they had been lying naked on the ground whilst concealed; the sort of injuries that he had sustained; the monetary loss that he had incurred, or would incur, and so on. Those are the kind of material facts as are contemplated by cases such as <em>Banana</em> above. If three years elapsed before the plaintiff had taken action or interrupted prescription, then his cause of action would be extinguished. The lapsing of a debt by prescription is absolute, unless one can show that prescription does not apply or that the running of it was delayed or interrupted.</p> <p> </p> <p>[12]      Section 17 of the Act provides for situations where the completion of the period of prescription is delayed. None of them applies to the plaintiff’s case. Sections 18 and 19 of the Act provide for situations where the running of prescription is interrupted. These are when the debtor acknowledges liability and when the creditor serves process on the debtor claiming the debt. The plaintiff expressly concedes that none of these applies to him either. That should mark the end of his case. But his counsel has crafted the argument that prescription should not be raised against the plaintiff because his cause of action only arose in September 2016 when the police abandoned the criminal case against him.</p> <p> </p> <p>[13]      That the plaintiff had been arrested by the police for the alleged theft of the conductors and or that it had taken the police seven years to clear him is not one of the factors that interrupts or delays the running of prescription. Whilst a single incident may give rise to multiple types of proceedings including criminal and civil, the outcome of one does not bind the other or others. The police and the prosecution could well have been pursuing a criminal case. The plaintiff was not precluded from pursuing his civil claim timeously after he had become satisfied that his injury and loss had arisen by reason of the defendant’s negligent conduct.</p> <p> </p> <p>[14]      The plaintiff’s arguments that until the police had exonerated him of the theft allegations, it was not known whether it was him or the defendant who had been to blame for his electrocution or that without having been so exonerated he would not have been able to prove his cause of action, are thoroughly ill-informed. He himself knew and had concluded that he had been electrocuted by reason of the defendant’s negligence. He did not need the police or anyone to tell him that. Furthermore, and at any rate, even after being exonerated, he would still need to prove liability on the merits as the defendant was contesting it.</p> <p> </p> <p>[15]      Cases like <em>Thompson v Minister of Police</em> and <em>Manjoro v Minister of Home Affairs</em> above, are completely inapposite and the plaintiff’s argument misconceived. These cases were concerned with situations where one sues the police and its parent ministry in respect of wrongful conduct, such as wrongful arrest or malicious prosecution. In such situations, until the criminal proceedings terminate in favour of the plaintiff, he or she would be hard pressed to prove wrongfulness or malice on the part of the police. That is why he or she has to wait for the proceedings to end, and to end in his or her favour. <em>In casu</em>, the plaintiff’s situation is different and incomparable.</p> <p> </p> <p>[16]      It is the finding of this court that the plaintiff’s claim has prescribed. Therefore, it is hereby dismissed with costs</p> <p> </p> <p> </p> <p> </p> <p>8 November 2019</p> <p> </p> <p><em>Legal Aid Directorate</em>, plaintiff’s legal practitioners</p> <p><em>Bere Brothers</em>, 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="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2019/52/2019-zwmsvhc-53.pdf" type="application/pdf; length=331125">2019-zwmsvhc-53.pdf</a></span></div><div class="field-item odd"><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/masvingo-high-court/2019/52/2019-zwmsvhc-53.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=58109">2019-zwmsvhc-53.docx</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/d">D</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/damages">DAMAGES</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/delictual-damages">Delictual (DAMAGES)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principle-compensation-damages">Principle of compensation (DAMAGES)</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/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/period-prescription">Period of prescription</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span> Fri, 29 Nov 2019 10:52:06 +0000 Sandra 9451 at https://old.zimlii.org Masenda & 6 Others v N. Stipinovich (Pvt) Ltd & 8 Others (HB 107-18, HC 859/15) [2018] ZWBHC 107 (26 April 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/107 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>JOSHUA MASENDA</strong></p> <p><strong>SEBASTIAN DUBE</strong></p> <p><strong>BETTER KWENGI</strong></p> <p><strong>MARTIN MAMUTSE</strong></p> <p><strong>RUEBEN MOYO</strong></p> <p><strong>ANDREW MATSHAZI</strong></p> <p><strong>BENJAMIN TSHUMA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>N. STIPINOVICH (PVT) LTD</strong></p> <p><strong>ROZANNA STIPINOVICH</strong></p> <p><strong>NATASHA STIPINOVICH</strong></p> <p><strong>PHILLIPE STIPINOVICH</strong></p> <p><strong>SVRNAM (PVT) LTD</strong></p> <p><strong>ANGELO JOSEPH STIPINOVICH</strong></p> <p><strong>FRANCESCA ANN STIPINOVICH</strong></p> <p><strong>THE ESTATE OF THE LATE JOSEPH STIPINOVICH</strong></p> <p><strong>REGISTRAR OF DEEDS N.O.</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 23 JANUARY &amp; 26 APRIL 2018</p> <p> </p> <p><strong>Special Plea</strong></p> <p> </p> <p><em>Mr J. Masenda</em> in person</p> <p><em>J. Tshuma</em> for the defendants</p> <p>            <strong>MAKONESE J:        </strong>This matter was set down for hearing on 23 January 2018 for oral argument on a special plea filed by the defendants, now applicants, in this matter.  After hearing the parties I entered the following order:</p> <p>            “1.       The special plea is upheld</p> <p>            2.         The plaintiffs’ claims be and are hereby dismissed with costs.”</p> <p>              I have been requested to furnish the reasons for judgment.  I now set out my detailed reasons.</p> <p> </p> <p><strong>Background</strong></p> <p>            The plaintiffs in this matter issued summons against the defendants claiming an order upholding an agreement of sale between the plaintiffs and Joseph Stipinovich and four others, concluded on the 4th March 2005, together with ancillary relief.  On 24th April 2015, upon receipt of the summons the defendants’ legal practitioners addressed a letter to the plaintiffs in the following terms:-</p> <p><em>“We are instructed by 1st to 8th defendants in the above matter, as you will have seen from the notice of appearance to defend filed of record on the 8th April 2015 and served on you the same day.</em></p> <p> </p> <p><em>Notwithstanding, that you as plaintiffs are self actors are nevertheless instructed and indeed are obliged, taking into account the manner in which you have pleaded to the claims in your declaration to except to substantial portions of your declaration as being, inter alia, argumentative, irrelevant and superfluous, evasive and vague and embarrassing and contain matters which may tend to prejudice, embarrass and delay the fair trial of this action.</em></p> <p> </p> <p><em>The matter which defendants find to be excepiable on the grounds referred to are contained in paragraph 3, 4, 5, 6, 7, 8 and 9 of your declaration.  We must ask you to amend your declaration so as to remove the cause of this complaint within 14 days of the service of this letter upon you.</em></p> <p> </p> <p><em>Should you fail to act in terms of this request and amend your declaration to remove the causes of complaint,  the defendants will file an exception and an application to strike out the portions of the paragraphs complained of and ask for costs against you.</em></p> <p> </p> <p><em>This letter is written to you as a matter of urgency as self-actors and in terms of Rule 140 of the High Court Rules.</em></p> <p> </p> <p><em>            Yours faithfully</em></p> <p> </p> <p> </p> <p><em>            Webb low &amp; Barry”</em></p> <p>            The plaintiffs filed a purported amended declaration which the defendants objected to on the basis that the summons was fatally defective in that at law only a legal practitioner was entitled to sue out a summons in the name of another person.  Further, and in any event, the defendants contended that the claims were prescribed.  The declaration in both form and content was still vague and embarrassing and argumentative.  For the sake of completeness, it is important to indicate that the basis of the plaintiffs’ claims arise from an agreement entered into between Joseph Stipinovich and four others on the one hand and Joshua Masenda and three others.  The agreement is headed “<strong>Agreement of Association”.</strong></p> <p>            The agreement provides as follows:</p> <p><em>“(a)     The two parties hereby agree to be partners in the business of N. Stipinovich (Pvt) Ltd whereby workers will be entitled to 70% of income remitting 30% to the shareholders or directors listed above through the account number 2541014 Barclays Bank, Main Street, Bulawayo.  This is so during the absence of the said directors.</em></p> <p> </p> <p><em>(b)        It also agreed (sic) that the workers are at any point entitled to the value of 70% value of the company, N. Stipinovich (Pvt) Ltd.  This is to cover the workers’ pensions and all terminal benefits which the company is not capable of paying.</em></p> <p> </p> <p><em>(c)        The workers will pay each other should one decide to resign or pay off to the deceased’s family should a worker die it shall not be the responsibility of the directors …”</em></p> <p>            The agreement was signed on the 4th of March 2005.  On 30th March 2005 A.J. Stipinovich a director of N. Stipinovich (Pvt) Ltd addressed a letter to the plaintiffs in the following terms:</p> <p><strong><em>“This letter is addressed to the ex-employees of N. Stipinovich (Pvt) Ltd who are currently using the company premises to operate the co-operative</em></strong></p> <p> </p> <p><em>Unfortunately, since the members of the co-op have not been able to maintain a viable operation and the company premises is being compromised, I hereby give you notice to vacate the premises as soon as possible and not later than 30th June 2015.</em></p> <p> </p> <p><em>No further business is to be conducted on the premises by the co-op and no property or equipment belonging to the company is to be removed by the co-op.</em></p> <p> </p> <p><em>Representatives of the major shareholders SVRNAM (Pty) Ltd, being Rozanna, Natasha and Phillipe will liaise with you with regard to your withdrawal.</em></p> <p> </p> <p><em>Please not that the shareholders have taken a decision to dispose of the remaining assets at 69 Bon Accord and sell the premises.</em></p> <p> </p> <p><em>The SVRNAM representatives have the mandate and approval of the other major shareholders, F. Stipinovich (Pvt) Ltd and A.J. Stipinovich to conduct the affairs mentioned above.</em></p> <p> </p> <p><em>            Yours faithfully</em></p> <p> </p> <p> </p> <p> </p> <ul> <li><em>J. Stipinovich</em></li> </ul> <p><em>Director”</em></p> <p>            This is the letter that triggered the issuance of summons by the plaintiffs.  It is apparent that the initial agreement of the 4th of March 2005 was so loosely worded that it is difficult to understand the contractual rights and obligations of the parties under that agreement.  The plaintiffs were obviously not deterred and filed the summons and declaration, which are now the subject of the special plea ,which I upheld on 23 January 2018.</p> <p><strong>The issues</strong></p> <p>            The defendants filed a special plea on two separate grounds.  The first ground raised is that the first plaintiff could not act for and on behalf of the other plaintiffs as such conduct is prohibited under the Legal Practitioners Act (Chapter 27;07).  The defendants contended that for that reason the summons was fatally defective.  The second objection is that the claims were prescribed.  The defendants’ defence to the special plea is firstly, that the defendants were barred and therefore could not file the special plea.  The defendants further averred that the first plaintiff was appointed by Resolution that gave him the requisite authority to act on behalf of the other individuals.  Lastly, the plaintiffs claimed that the claims were not prescribed because the agreement was intended to be “permanent and did not amount to a “debt” as defined in the Prescription Act (Chapter 8;11)</p> <p>            I shall deal with each of the issues raised in turn.</p> <p><strong>Whether the defendants were barred</strong></p> <p>            The record shows that on the 11th of June 2015 the plaintiffs caused to be served on the defendants’ legal practitioners, a purported notice of intention to bar in terms of Rule 80 of the High Court Civil Rules, 1971.  The rule provides as follows:</p> <p>            <strong><em>“Notice of Intention to Bar</em></strong></p> <p> </p> <p><em>A party shall be entitled to give five days’ notice of intention to bar to any other party to the action who has failed to file his declaration, plea or request for further particulars within the time prescribed in the rules and shall do so by delivering a notice in Form 9 at the address for service of the party in default.”</em></p> <p>            The above rule is peremptory in stating that the notice of intention to bar shall be in Form 9.  The contents of Form No. 9 shall not be replicated in their entirety,  however, there must be substantial compliance with the Form.  The notice of intention to bar filed by the plaintiffs in this matter contained the first part of Form 9.  It does not contain the requisite proof of service, nor does it contain the actual bar.  The notice of intention to bar and bar is therefore fatally defective as the plaintiffs failed to comply with the requirements of Rule 80 of the Rules.  Further, and in any event, the plaintiffs failed to comply with Rule 81 of the High Court Rules when attempting to effect  the bar.  Rule 81 relates to the actual method of barring and provides as follows:</p> <p>            “<strong>Procedure for barring</strong></p> <p> </p> <p><em>On the expiry of the time limited by the notice, the party who has served the notice</em> may <em>bar the opposite party by filing a copy of the notice with the Registrar.  The endorsement on Form No. 9 shall be duly completed before filing and it shall be signed by the party who has given the notice to his attorney.”</em></p> <p>            Rule 81 makes it a procedural requirement that the endorsement on Form No. 9 shall be completed before filing.  The plaintiffs did not include the endorsement on the notice of intention to bar and therefore this could not be completed as required by Rule 81.  The bar was therefore not effected  in terms of the Rules.  A bar not effected in terms of the rules is incompetent and of no force and effect.</p> <p>            Further, and in any event,  the purported barring by the plaintiffs was unprocedural in that the plaintiffs failed to provide any proof of service to indicate that the notice of intention to bar had been served.  In the case of <em>Heating Elements Engineering (Pvt) Ltd &amp; Ors</em> v <em>Th</em>e <em>Eastern and Southern African Trade &amp; Development Bank (PTA Bank)  </em>SC-13-02, SANDURA JA held that the failure to comply with the peremptory provisions of Rule 81 meant that no bar had been effected.  He observed at page 3 of the cyclostyled judgment as follows:-</p> <p><em>“Thus, the endorsement on the copy of the notice of intention to bar filed with the Registrar of the High Court in terms of Rule 81 was not duly completed and no certificate of service was filed with the Registrar as required in Rule 81.  The provisions of Rule 81 were not therefore complied with.  In the circumstances, the chamber application for a default judgment was not in order because the respondent did not comply with the barring procedure set out in Rule 81.  The appellants were, therefore, not barred and the learned Judge President should not have granted the default judgment.”</em></p> <p>            In this matter, I am satisfied that the plaintiffs’ claim that the defendants are under bar is of no moment as the notice of intention to bar was fatally defective in that the procedural requirement for effecting a bar had not been complied with. The defendants were not barred.</p> <p><strong>Whether the first plaintiff’s representation of other plaintiffs was competent</strong></p> <p>            The first plaintiff is a self actor.  He sued out a summons for and on behalf of the other plaintiffs.  The first plaintiff purported to rely on a Resolution of the other plaintiffs, and averred that he was granted authority to act on behalf of the other parties by such Resolution.  The first plaintiff purported to rely on powers of attorney that were not part of the pleadings.  Inspite of these purported powers of attorney, the first plaintiff’s attempt to act on behalf of other persons in this matter contravenes section 9 (2) of the Legal Practitioners Act.  Section 9 of the Act provides in part that:</p> <p>“(2)      Subject to any other law, no person other than a registered legal practitioner who is in possession of a valid practising certificate issued to him shall –</p> <p> </p> <ul> <li>Sue out any summons or process or commence, carry on or defend any action, suit or other proceeding in any court of civil or criminal jurisdiction in the name of any other person; …”</li> </ul> <p>It is common cause that first plaintiff is not a registered legal practitioner.  The first plaintiff purported to sue out the summons in these proceedings in the name of the second to seventh plaintiffs and on their behalf.  This he could not do. The first plaintiff’s actions contravened the provisions of the Legal Practitioners Act, and as such, are therefore clearly a nullity.  The summons and declaration are fatally defective in that regard and the pleadings are consequently incompetent.  The first plaintiff refused or failed to remedy the defect inspite of being called upon to do so.</p> <p><strong>Whether the claims are prescribed</strong></p> <p>            The agreement on which the plaintiffs rely in these proceedings was entered into on the 4th of March 2005.  The plaintiffs contend that the agreement existed   in perpetuity, and that for that reason, was not subject to the provisions of the Prescription Act ( Chapter 8:11).  The plaintiffs argued that the debt they are suing for is not a “debt” as defined in the Prescription Act.</p> <p>            As I have indicated earlier, the exact nature of the plaintiffs’ claims is unclear from the agreement and the summons.  The cause of action arose from the purported “<strong>Agreement of</strong> <strong>Association</strong>” entered into between the late Joseph Stipinovich. The plaintiffs’ allege that a sum of US$350 000 is due and owing to them in terms of the agreement.  It is not clear from the provisions of the agreement how the defendants’ indebtedness arose.  The agreement provides that at any point the workers would be entitled to a 70% value of the company.  It is not stipulated what the value of the company was.  No such value was computed and clearly the agreement was worded in vague terms.  The agreement was entered into on 4th march 2005.  In terms of the Prescription Act, section 15 (d) an ordinary debt  shall prescribe after 3 years.  In terms of section 16 of the Act, Prescription begins to run as soon as the debt is due.</p> <p>            In order to determine when the debt was due, an examination of the wording of the agreement is necessary.  The agreement stated that the workers were entitled at any point to  70% of the value of the company.  As such, the debt became due on the date of signature of the agreement.  The debt therefore prescribed 3 years after the date of signature of the agreement, on 5th March 2008.  The plaintiffs’ claims, if any, were therefore prescribed by operation of law.</p> <p><strong>Disposition</strong></p> <p>            For the aforegoing reasons, I have no doubt that the defendants have not been barred in this matter as the purported notice of intention to bar was fatally defective.  The first plaintiff’s purported representation of the other plaintiffs in the matter is prohibited under the Legal Practitioners Act.  The plaintiffs’ claims are clearly incompetent.</p> <p>            The proceedings filed in this matter are fatally defective and incurably bad.  In any event, plaintiffs’ claims if any, are wholly prescribed.</p> <p>            Accordingly after hearing oral arguments from the parties I entered the following order:</p> <ol> <li>The special plea is upheld.</li> <li>The plaintiffs’ claims be and are hereby dismissed with costs.</li> </ol> <p><em>Webb, Low &amp; Barry,</em> defendants’ 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/bulawayo-high-court/2018/107/2018-zwbhc-107.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24848">2018-zwbhc-107.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/bulawayo-high-court/2018/107/2018-zwbhc-107.pdf" type="application/pdf; length=241174">2018-zwbhc-107.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/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/procedure-barring">procedure for barring</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/15">Legal Practitioners Act [Chapter 27:07]</a></div></div></div> Wed, 06 Jun 2018 07:42:47 +0000 admin 8887 at https://old.zimlii.org Callander Enterprises (Private) Limited & Another v Econet Wireless (Private) Limited (HH 232-18, HC 170/16) [2018] zwhhc 232 (09 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/232 <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/2018/232/2018-zwhhc-232.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21241">2018-zwhhc-232.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/2018/232/2018-zwhhc-232.pdf" type="application/pdf; length=226101">2018-zwhhc-232.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/enrichment">ENRICHMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unjust-enrichment">Unjust enrichment</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><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span> Tue, 22 May 2018 10:00:02 +0000 admin 8850 at https://old.zimlii.org Howson v Cameron (HH 141-18, HC 12308/15) [2018] ZWHHC 141 (14 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/141 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MARY MURDOCH HOWSON</p> <p>versus</p> <p>JOHN ALEXANDER CAMERON</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATANDA-MOYO J</p> <p>HARARE, 4 December 2017 and 14 March 2018</p> <p><strong>Trial</strong></p> <p><em>F Girach</em>, for the plaintiff</p> <p><em>J Wood</em>, for the defendant</p> <p>            MATANDA-MOYO J: The plaintiff and the defendant are siblings. The plaintiff who is the younger of the two brought a claim against her brother the defendant for payment of the sum of $200 000.00 being the balance due and payable in respect of shares sold to the defendant. The plaintiff also sought interest on the above amount at the prescribed rate and costs of suit on a legal practitioner-client scale.</p> <p>            It is the plaintiff’s case that on 30 June 2008 the plaintiff and the defendant entered into an agreement of sale whereby the plaintiff agreed to sell her interest in Hamish Cameron (Pvt) Ltd to the defendant. The price was agreed at US$240 000-00 payable in five equal instalments. Before payment of the shares by the defendant the plaintiff transferred her 10 000 shares to the defendant. The defendant as at 25 November 2010 had paid $40 000-00 towards the shares leaving a balance of $200 000.00 which is the subject of this claim.</p> <p>            In his plea the defendant denied owing $200 000.00 nor any other sum to the plaintiff. Firstly the defendant raised the defence of prescription. It is the defendant’s case that first payment was due on 1 February 2009. From then on there was no demand from the plaintiff. Secondly the plaintiff pleaded that the agreement contravened s 11 of the Exchange Control Regulations SI 109/96 and was therefore illegal and unenforceable. The agreement created an obligation to make payment in foreign currency to another Zimbabwean resident in Zimbabwe without exchange control authority. The defendant denied liability also on the basis that the initial arrangement was varied from $240 000-00 to $40 000-00. The defendant has therefore paid whatever was owing to the plaintiff in full. The defendant prayed for dismissal of the plaintiff’s claim with costs on a higher scale.</p> <p>            The plaintiff in her replication denied her claim was prescribed nor that the agreement was illegal. She also denied the existence of any varied agreement between the parties.</p> <p>            The issues referred for trial were as follows;</p> <ol> <li>Whether the claim has prescribed</li> <li>Whether the sale agreement between the parties is lawful.</li> <li>Whether the sale agreement was varied</li> <li>Whether the defendant made an express or tacit acknowledgement of liability and</li> <li>Whether or not the defendant is indebted to the plaintiff in the sum claimed or any other amount on the agreement.</li> </ol> <p>The plaintiff testified that the defendant is her blood brother. Their parents established a company called Hamish Cameron (1986) (Pvt) Ltd in the 1960s. In 1986 their father split the company between the plaintiff and the defendant equally with each holding 10 000shares. Their father retained 100 shares and their mother 100 shares. From when she was 18 years old the plaintiff moved to work in the company. The defendant ran two farms which were owned by the company. Their father passed on in May 2000 and his shares passed on to their mother. The plaintiff continued running the company with her mother who also passed on in 2009. In 2002 the farms were acquired and the defendant moved to the company. The two worked well together until Brett, defendant’s son joined the company in 2003. Trouble started between the plaintiff and defendant. The defendant would take company produce to sell from his house and fail to remit money to the company. Their relationship deteriorated resulting in plaintiff deciding to quit the company. She offered her shares to defendant. The two negotiated in the presence of Mr Andrew House whose company was responsible for Hamish Company’s books. After several draft agreements the two finally agreed on the terms and signed an agreement of sale on 30 June 2008. The agreement stated that the price shall be an amount equivalent to the share portfolio held at Datvest and Tetrad in the company’s name as at 31 December 2007. Such shares were to be transferred upon signing the agreement. In addition an amount equivalent of US$240 000 was to be paid to the plaintiff in five equal instalments.</p> <p>It was also agreed that should compensation be paid for the two farms acquired by government in future the plaintiff would receive 50% of such compensation.</p> <p>This witness testified that she continued following up on payment through emails and through Mr House. She testified that at a meeting with the defendant, Mr House and Brett on 19 March 2015 the defendant acknowledged the debt and offered to pay $1000 per month which offer this witness rejected. It was going to take 200 months to extinguish the debt. Thereafter defendant was explicit that he was not going to pay. The defendant claimed it was their mother’s wish that he only pay $40 000. The defendant also alleged that the exchange rate used was wrong. These accusations only came way after signing the agreement.</p> <p>On being asked about an addendum allegedly originated by her, where she altered the original figure owing to $40 000, this witness denied authoring that document. Besides she testified that it was never signed and therefore of no consequence. She denied ever varying the original agreement and maintained that the defendant owed her $200 000-00. Under cross-examination, she said she had a good relationship with her brother. Brett, her brother’s son was the one bent on instigating disharmony between the two siblings. She said she decided to sell her interest in the company due to bullying by Brett. On being asked whether she operated from the same premises as Brett, she responded in the negative.</p> <p>On the price of her interest in the company she maintained that she and the defendant negotiated with the help of Mr House. It took about six months to come up with the final agreement. The defendant also inputted his contribution to the agreement.</p> <p>Mr House testified on behalf of the plaintiff that indeed his company Agrilink Accounting Services did the external books for Hamish Company for almost twenty five years. Before his death Mr Cameroon who was father to the plaintiff and the defendant handed equal shares in the company to the plaintiff and the defendant. He is the one who prepared the agreement of sale of the plaintiff’s shares to the defendant. In early December 2007 he was approached by the plaintiff who intended to sell her shares in the company to the defendant. That time the company was viable. The two did the valuations of the movable assets of the company. The three of them discussed and came to an understanding on the value of the company. After the agreement was drafted it was signed by both parties and witnessed by this witness and an employee of Agrilink.</p> <p>As far as he is aware the defendant owed $240 000 and only paid $40 000 leaving a balance of $200 000. Whilst following up on the $200 000 he learnt from Brett and the defendant that they were not happy with the valuations done. The valuations included a property which was not supposed to be there.</p> <p>This witness then held a meeting with the parties at his offices on 19 March 2015 to try and resolve the dispute. At that meeting the defendant started off not wanting to pay as he said he could not remember owing. Afterwards he offered a $1000 per month but the plaintiff refused the offer. The defendant said he could not afford to pay. The meeting failed to resolve the matter.</p> <p>Under cross-examination he conceded he was conflicted but was quick to say his evidence was neutral and true. This witness said he was sad to witness the plaintiff and the defendant’s relationship deteriorate to these levels. He insisted agreement was agreed upon by both parties. The defendant was to pay for the shares in any form, for example assets. The company was valued at $2.2 million but the plaintiff accepted to get the lower value of $800 00. This witness insisted the defendant owed $200 000 as the original agreement. The purported variation agreement was never signed by the parties. Under cross examination he confirmed the defendant’s house was purchased by Harnish Company. He didn’t know how the plaintiff’s house was purchased. He insisted he was not aware of any variations done between the parties. When the plaintiff transferred the invested shares in Tetrad and Datvest this witness could not tell whether the company was left liquid.</p> <p>            The defendant testified on his own behalf. It was his evidence that he loves the plaintiff who is his sister. He testified that when his father passed on in 2000 he moved to assist in the running of the business. He would then commute between the farm and business. The plaintiff was already with the company doing books’ and some clerical work. The plaintiff worked closely with the external accountants Agrilink. He confirmed that when his son Brett moved to work in the company, Brett did not have a good relationship with the plaintiff. He however testified that they operated from different branches, the plaintiff was in Spurn Road whilst the plaintiff was stationed in Workington. This witness conceded that at one point in 2007 the plaintiff approached him and advised that she intended to leave the company due to friction with Brett. He admitted that him and the plaintiff had negotiations for him to buy off the plaintiff’s interest in the company. Mr House of Agrilink played a pivotal role. After three or four draft agreements a final one was reached. He admitted he drew up a list of company assets and values were done internally. He admitted that he signed an agreement admitting he owed $240 000 to the plaintiff. He however testified that upon advising their mother, she disagreed with the figures and queried why the defendant’s house had been included in valuation whilst the plaintiff’s house was left out.</p> <p>He testified that after he realised the agreement favoured his sister he had tried to change the agreement. He approached Mr House and numerous discussions were held between them. The plaintiff in one of the meetings brought an addendum to the agreement of sale which removed the defendant’s house from the valuation of company assets. In that addendum the figure of $240 000-00 outstanding was reduced to $40 000-00. The plaintiff indicated that she was not going to sign the addendum as she claimed it had come about as a result of bullying their mother. This witness signed the addendum. Their mother died in 2009. This witness testified that he started paying $40 000-00 in 2010 and finished paying in November 2010. He insisted he owed nothing to the plaintiff. It was only in 2015 that the plaintiff started bringing up the issue claiming $200 000-00 from the defendant. It first surfaced in an email from Agrilink advising him that they had transferred some money from his mother’s estate.</p> <p>Under cross-examination he repeated that the current relationship between the two siblings had deteriorated as a result of this issue. The two do not even communicate. He said the main reason the plaintiff left the company was so that she and her husband could start their own company.</p> <p>He insisted that their mother in 2008 decided that $200 000-00 should be dropped from the outstanding figure. On being questioned if their mother was involved in the negotiations culminating to the agreement this witness replied that the agreement was between him and his sister and had nothing to do with their mother. He conceded agreement took 6 months to be finalised and could not explain if they kept their mother out for such a period why suddenly her wishes seemed so important.</p> <p>He admitted he could not pay anything in 2008 as he had five years within which to pay. He argued that the agreement signed between the two had a provision saying any variation not signed by the parties was of no force and effect. He admitted the variation was not signed by both parties.</p> <p>Brett testified on behalf of the defendant. He is the son to the defendant. He testified that he was born on the farm and after school went back to work on the farm. After the farms were acquired by government he moved into town to join the family business. The defendant had moved to the business earlier on upon the passing on of the defendant’s father in 2010. He was based at Ardbenie. Around 2007/8 this witness was advised that the plaintiff was leaving the company to start her own business in catfood manufacturing. This witness then moved across to Head Office from where the plaintiff was working from in order to take over from the plaintiff’s husband.</p> <p>This witness denied he was the cause of the plaintiff’s leaving the family business. He testified that they were not based at the same branch. This witness admitted he could question certain transactions by the plaintiff and her husband. The plaintiff and her husband were operating a company called Solowaste and sometimes money would be moved from Hamish company into Solowaste.</p> <p>He testified that he was involved in the subsequent negotiations  between the plaintiff and the defendant. The assets were valued in Zimbabwean dollar. Thereafter a rate of Z$5 000 000-00 to US$1 was used in converting the amount to US$. When the original agreement was signed this witness was not present. When he learnt of the agreement that is when he realised the wrong exchange rate was used.</p> <p>The rate of Z$5000 000-00 used meant there were more US$ to share when in reality company assets were overvalued. Had they used the correct rate of Z$5 500 000-00 that meant less US$ to share and less US$ to be paid to the plaintiff. He felt the agreement favoured the plaintiff. The plaintiff took all the shares that is Tetrad and Datvest. All cash made was invested in those shares. To make matters worse the plaintiff moved the shares before an agreement was reached with the defendant. From the time such shares were taken by the plaintiff the company went into red and never recovered.</p> <p>When asked how the $240 000-00 was reduced to $40 00-00 this witness advised that the plaintiff and the defendant’s mother did that. When valuating company assets for purposes of the split only the defendant’s house was included as part of the assets. The plaintiff’s house though bought from inheritance money was not included.</p> <p>His grandmother was upset that the plaintiff was short-changing the defendant and directed that the defendant’s house be removed from the company assets. She was amenable to its value being put at $200 000-00. So the removal of the house meant the balance was reduced by that amount to $40 000-00. That issue remained resolved until later in 2015 when Mr House sent an email saying he had been reminded by the plaintiff to follow up on the payment of the $200 000-00. This witness admitted recording the meeting of 19 March 2015 and stated that it was a correct recovered of what transpired.</p> <p>Under cross-examination this witness conceded his educational qualification were predominantly Agriculture. He was adamant the lower exchange rate used prejudiced the defendant as the defendant ended up owing more money to the plaintiff. He agreed he saw a number of drafts agreement leading to the drafting of the final agreement. He would at time advise the defendant on the drafts. This witness testified that it was Mr House who convinced the defendant to include the Dermoy house. He conceded that the purpose of a written agreement was for purposes of ironing out future disputes. He admitted agreement was binding unless varied. He also admitted the addendum purportedly varying the agreement was not signed and therefore of no force and effect.</p> <p>ANALYSIS OF EVIDENCE</p> <p>From the evidence in support of the plaintiff and that in support of the defendant it is not in issue that the parties entered into an agreement of sale whereby the plaintiff sold her shares in Hamish Cameron (Pvt) Limited. The agreed price was:</p> <p>‘1.        the share portfolio held at Datvest and Tetrad in the company’s name as at the 31st December 2007. The said shares were to be transferred to the seller upon signature of this agreement; and</p> <p>2.         US$240 000-00 payable to the seller in five equal instalments within a period of five years.</p> <p>The two farms owned by the company namely Starthlorne, Glentana and Fairview in</p> <p>the District of Enterprise or Acturus acquired by government were left out. However the parties agreed that should government in future pay compensation for the farms, 50% of such compensation be given to the plaintiff.</p> <p>            The parties agreed that in pursuance to the above agreement the shares held at Datvest and Tetrad have since been transferred to the plaintiff. The defendant has also paid to the plaintiff the sum of  $40 000-00. The parties then differ on whether the $40 00-00 represented full and final payment.</p> <p>            The plaintiff sued the defendant in terms of the agreement entered into on 30 June 2008. According to her the defendant was to pay US$240 000-00 over and above the transfer of Tetrad and Datvest shares. On the other hand whilst accepting the original agreement entered into on 30 June 2008 the defendant testified that such agreement was varied in terms of an addendum to the agreement of sale allegedly drawn by the plaintiff on the instruction of their late mother. Such addendum reads;</p> <p>            “ADDENDUM TO AGREEMENT OF SALE made and entered into between</p> <p>            MARY HOWSON</p> <p>             and</p> <p>            JOHN CAMERON</p> <p>            As per the wishes of my mother, Mrs Alice Margaret Cameron, accepted that the   property “10 Dermoy Lane, Borrowdale, Harare” be removed from the valuation of        Hamish Cameron assets as of 1 January 2008 for purposes of this sale.</p> <p>            The figure of US$240 000 (Two hundred and forty thousand dollars) stipulated in para 11 of the agreement will therefore be altered to read USD$40 000 (Forty       thousand dollars)</p> <p>            SIGNED:</p> <p>            M M HOWSON                                             Date …………………..</p> <p>            J A CAMERON                                             Date ………………….”</p> <p>            Such addendum presented to was neither signed nor dated. Defendant testified that he signed the addendum and returned same to plaintiff. The plaintiff denied ever generating the addendum. Her testimony was to the effect that she never signed that addendum. She did not recognise it. I do not believe it is crucial to find out who prepared the addendum. What is important is that it was never signed by the two parties.</p> <p>            The evidence show that the addendum was the parties’ mother’s input to the agreement. Even Brett testified to that effect that it was his grandmother who ordered that the Dermoy house be removed from the assets of the company. Brett also testified that it was the same grandmother who came up with the value of US$200 000 for the Dermoy house. From the evidence it is clear the purported reduction in price was as per the desire of the parties’ mother. The parties themselves did not agree to the addendum.</p> <p>            The parties’ evidence also differ whether the defendant did acknowledge owing US$200 000 at a meeting of the 19 March 2015. The plaintiff relied on page 36 of the record where defendant allegedly offered US$1000 per month. The conversation went as follows;</p> <p>“JC (defendant) you will get your money if you are owed it – I am just saying there is no ways I can pay 200 000 dollars.</p> <p>A H (Andy House) ----</p> <p>J C I will make you on offer if we can pay you 1000 a month.</p> <p>I mean its going to stretch us</p> <p>M H: No John, 1000 a month is not enough do you know how long it will take, I will be dead</p> <p>J C its I was not aware i still owed you money</p> <p>----”</p> <p>The plaintiff took the above to mean that the defendant acknowledged the debt of</p> <p>$200 000 on 19 March 2015. The defendant denied the above was an expression that he owed plaintiff $200 000. The defendant accepted saying the words but refuted he acknowledged the debt.</p> <p>            At this point it is enough to simply note that the words were indeed said. Whether such words constitutes an acknowledgement of debt would be dealt with later in the judgment.</p> <p>            The first issue falling for determination is whether the claim is prescribed. In coming to my conclusion I have looked at the wording of the agreement on how the $240 000 was to be paid. In other words I shall determine when the amount was due and payable. The relevant portion of the agreement reads;</p> <p>“In addition an amount equivalent to USD240 000 (Two hundred and forty thousand dollars) shall be payable to the seller in five equal instalment within a period of five years.”</p> <p>Section 16 of the Prescription Act [<em>Chapter 8:11</em>] provides that prescription shall commence to run as soon as a debt is due. The present debt falls under the definition of debt as provided by s 2 of the Act. That section defines a debt as “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.” See also <em>Syfin Holdings </em>v <em>Pickering </em>1981 ZLR 344 (H).</p> <p>The legal position relating to when prescription begins to run is provided under s 16 of the Act which speaks to the date of commencement as when a debt becomes due. Generally a debt becomes due when the cause of action arises. In the present case the debt due is the last day when payment was expected from the defendant. See <em>Chrinda </em>v <em>Konrad van der Merwe &amp; Minister of Lands and Rural Resettlement </em>HH 51/13 and <em>ZIMASO Ltd</em> v <em>Son HE Mining (Pvt) Ltd </em>HH 654/15, <em>Shinga </em>v <em>General Accident Insurance Co (Zimb) Ltd </em>1989 (20 ZLR 266 (HC). In <em>Syfin Holdings</em> <em>Ltd</em> v <em>Picking (supra)</em> at 14 F – G the court had this to say;</p> <p>“It is clear beyond argument that before prescription can begin to run against a creditor he must have been able to bring his action. Wessels, <em>Law of Contract </em>in South Africa, 2 ed,Vol 2 para 2780. It is also clear that in order to be able to institute an action for recovery of a debt, the creditor must have a complete cause of action in respect of it. <em>HMBMP Properties (Pty) Ltd</em> v King, 1981 (1) SA 906 (N) <em>per Thivion jut</em> 909.”</p> <p>In the present case the agreement was signed on 30 June 2008, but was effective from</p> <p>1 January 2008. The debt was to be paid in equal instalments over a period of five years. That meant the last instalment was due on 1 January 2013. Three years down the line would have been 31 December 2015. In cases involving instalments, prescription normally starts to run on the date the last instalment is due – See <em>Makusha Chihoho and Others </em>SC 14/08, <em>Alpha Media Holdings (Pvt) Ltd </em>v <em>Globeflower (Pvt) Ltd </em> HH 810/15.</p> <p>            Summons in the present matter were filed on 15 December 2015 but only served on the defendant on 4 January 2016. Service was done after prescription period had run. The service did therefore not interrupt the prescription in terms of s 19 of the Act.</p> <p>            The plaintiff then sought to rely on a purported acknowledgement of debt by the defendant in a meeting between the parties on 19 March 2015. The defendant rightly conceded that an acknowledgement of liability normally interrupts prescription if made within the three year period as provided for in s 15 of the Prescription Act. I agree with the defendant’s submissions that the onus to prove the existence of an acknowledgment of debt lies with the plaintiff. See <em>Pertz </em>v <em>Government of the Republic of South Africa </em>1983 (3) SA 584 A, <em>Benson and Another </em>v <em>Wlates and Ors </em>1984 (1) SA 73 A and <em>First Mutual Bank of Zimbabwe </em>v <em>Fortress Industrial Investments (Pvt) Ltd and Anor </em>2000 (1) ZLR 211 (SC).</p> <p>            The plaintiff submitted that the defendant, at a meeting of the 19 March 2015 acknowledged owing the debt.</p> <p>            The plaintiff as proof availed minutes of the meeting written by Mr Andy House. The minutes are on page 10 and 11 of plaintiff’s bundle of documents. On page 11 it is noted that;</p> <p>            “14 Mary stated that there was still $200 000 owing to her from the agreement.</p> <p>            15. John acknowledged this.”</p> <p>            The plaintiff relied on the above as the acknowledgment of debt.             </p> <p>            The defendant on the other hand produced minutes of 19 March 2015. I have alluded to the relevant portion earlier on in my judgment. I have already taken the view that the issue of the $200 000 was discussed at the meeting. What then falls for determination is whether the words spoken by defendant constitute an acknowledgement of debt.</p> <p>            For an acknowledgment of debt to be valid it should contain the following;</p> <ol> <li>The acknowledgement of debt should be made by the debtor or his agent</li> <li>The acknowledgement of debt must be made expressly or tacitly acknowledging the existence of liability.</li> <li>The acknowledgement must be made to the creditor or his agent.</li> </ol> <p>See <em>First Merchant Bank oF Zimbabwe Ltd </em>v <em>Fortress Investments (Pvt) ltd and Another </em>2000 (2) ZLR 221 (S).</p> <p>            When considering tacit acknowledgement the conduct of the debtor also becomes relevant. See <em>Cape Town Municipality</em> v <em>Allie</em> 1982 (2) SA 1 (C) and <em>Benson and Another </em>v <em>Waltes &amp; Others</em> 1984 (10 SA 73 (A).</p> <p>            The defendant accepted that he said the words ascribed to him that if he owes the money he would pay. He however denies that such words constitute acknowledgment of debt.</p> <p>            Considering the words and conduct of defendant I am of the view that there was no acknowledgement of the debt by the defendant. The words were not a direct acknowledgment. The defendant used the words “you will get your money if you are owed” and “ I will make you an offer if we can pay you $1000 a month.”</p> <p>            There is no tacit acknowledgment to talk about. The $1000 per month was conditional upon plaintiff accepting the offer. The offer was not taken by plaintiff. The defendant’s conduct thereat and thereafter does not suggest that he acknowledged the debt.</p> <p>            I am satisfied that the plaintiff has failed to discharge the onus upon her of proving that the defendant acknowledged the debt on 19 March 2015. Having so failed it follows that there was no interruption of the prescription. The debt prescribed on 31 December 2015.</p> <p>            On that basis alone the claim fails and is dismissed.</p> <p>            In the result I order as follows:</p> <ol> <li>The plaintiff’s claim against the defendant is prescribed.</li> <li>The claim is thus dismissed with costs.</li> </ol> <p><em>Atherstone and Cook</em>, plaintiff’s legal practitioners</p> <p><em>Venturas &amp; Samkange</em>, defendant’s legal practitioners</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/2018/141/2018-zwhhc-141.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29793">2018-zwhhc-141.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/2018/141/2018-zwhhc-141.pdf" type="application/pdf; length=159779">2018-zwhhc-141.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/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interruption-prescription">Interruption of prescription</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/period-prescription">Period of prescription</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</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/2015/0">ZIMASCO (Pvt) Ltd v San He Mining (Pvt) Ltd. (HC 9097/14) [2015] ZWHHC 654 (28 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2008/14">Makusha v Chihoho and Others (Civil Appeal No. 303/06 ) ((Civil Appeal No. 303/06 )) [2008] ZWSC 14 (22 October 2008);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2013/51">Chirinda v van der Merwe &amp; Another ( HC 2508/11) [2013] ZWHHC 51 (18 February 2013);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/810">Alpha Media Holdings (Pvt) Ltd. v Globeflower (Pvt) Ltd. (HC 4518/14) [2015] ZWHHC 810 (12 October 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31-0">Presciption Act [Chapter 8:11]</a></div></div></div> Fri, 27 Apr 2018 10:15:52 +0000 admin 8772 at https://old.zimlii.org Brooker v Mudhanda & Another (SC 5/18, Civil Appeal No. SC 457 & 458/15) [2018] ZWSC 5 (05 February 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/5-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (5)</strong></p> <p><strong>(1)    JENNIFER     NAN     BROOKER    </strong></p> <p><strong>vs</strong></p> <p><strong>RICHARD     MUDHANDA     AND     THE     REGISTRAR     OF     DEEDS</strong></p> <p><strong>(2)     ADRIENNE     STALEY     PIERCE</strong></p> <p><strong>vs </strong></p> <p><strong>RICHARD     MUDHANDA     AND     THE     REGISTRAR     OF     DEEDS</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA, HLATSHWAYO JA &amp; BHUNU JA</strong></p> <p><strong>HARARE: JUNE 6, 2016 &amp; FEBRUARY 5, 2018</strong></p> <p><em>D. Ochieng,</em> for the appellants</p> <p><em>N. Chikono,</em> for the first respondent</p> <p>No appearance for the second respondent</p> <p> </p> <p><strong>GOWORA JA:          </strong>This is a composite judgment in respect of two appeals which were, at the request of the parties, consolidated and heard at the same time. The appeals are against two separate judgments by the High Court dismissing special pleas of prescription raised by the appellants in respect of a claim for specific performance launched by the respondent.</p> <p>The following are the salient facts to the dispute. The two appellants are sisters. In November 2014, the first respondent, (hereinafter referred to as the respondent) issued summons under separate case numbers against the appellants in the High Court claiming transfer of certain immovable properties from the appellants on an individual basis.</p> <p>Under Case No HC 10410/14 in which the respondent sued the first appellant, the respondent alleged in the declaration that the first appellant had sold to him two immovable properties, namely Stands 285 and 286 Colne Valley Township, held under Deed of Transfer numbers 1788/69 and 1688/69 respectively.</p> <p>In respect of the second appellant, under Case No HC 10411/14, the respondent alleged that the former had sold to him Stands 296 and 297 Colne Valley Township held under Deed of Transfer numbers 1597/69 and 1602/69.</p> <p>In both declarations, which, with the exception of the names of the defendant and the identity of the stands in dispute, were identical, the respondent alleged that after the sale he had sought to consolidate his title over the properties by way of registration at the offices of the Registrar of Deeds. He had then realized that the appellants were opposed to the registration.</p> <p>Each of the appellants entered an appearance to defend the claims. Subsequent to this they filed special pleas. I set out hereunder the plea by the first appellant:</p> <p>“1.Even if Plaintiff’s averment that he personally acquired his rights in respect of the two [properties on 6 August 2002 was correct (although it is denied), the consequent obligations allegedly owed to him personally by First defendant were extinguished after three years elapsed, by reason of s 14 and 15 of the Prescription Act [<em>Chapter 8:11</em>].</p> <p>2.   The defence raised in Paragraph 1 above is one of substance which does not involve going into the merits of the case and which, if allowed, will dispose of the case.</p> <p>3.   Plaintiff’s averment that until 2015 he mistakenly believed that the rights flowing from the Agreement of Sale of 6 August 2002 were owed to his company, rather than himself, does not assist his supposed cause of action and is irrelevant.          </p> <p>Wherefore first defendant prays that the plaintiff’s claim be dismissed with costs of suit. “</p> <p>The second appellant filed an identical plea, the only difference being the dates as to when prescription was alleged to have set in. Neither filed a plea on the merits.</p> <p>Thereafter the two matters were set down on separate dates for hearing before the same judge who issued two separate judgments. In the court <em>a quo</em>, the finding was that the agreement did not state when ownership should have passed to the purchaser, and that in the absence of an agreed date the purchaser should have placed the seller in <em>mora</em>. In both cases the court held that from the papers it was not clear whether demand had been made if at all and therefore it could not make a finding that the claim had prescribed. It proceeded to dismiss the special plea in both cases.</p> <p>The first appellant contends that the court <em>a quo</em> erred in the following respects: -</p> <p>-           in not finding that the respondent’s supposed cause of action for the transfer of the properties arose on signature of the alleged agreement on 4 May 2002 and hence prescribed on 4 May 2005;</p> <p>-           in finding that a demand for transfer was an ingredient in the respondent’s supposed cause of action and not merely a step in the enforcement of the purported claim;</p> <p>-           alternatively, in not finding that the first respondent himself impliedly claims to have made such demand in 2009, such that even on the reasoning that is respectfully criticized in the second ground of appeal, the claim would have prescribed sometime in 2012;</p> <p>-           in not finding that the first respondent’s claim was prescribed and in not dismissing the action.</p> <p> </p> <p>In my view the issues in the appeal are two pronged. The first issue is concerned with the question of cause of action as determined by the court <em>a quo</em>. The second issue is related to the manner in which the court a quo arrived at its determination that the debt had not prescribed resulting in the dismissal of the two pleas filed by the appellants.</p> <p>At issue before the court <em>a quo</em> was whether or not the claims mounted against the appellants by the respondent had prescribed. The party who alleges prescription must allege and prove the date of the inception of the period of prescription. Generally, prescription starts to run as soon as the debt becomes due. </p> <p>In order to determine the question of prescription the court first had to make a finding on the cause of action upon which the respondent’s claim was premised and when specifically the cause of action arose. What constitutes ‘a cause of action’ was described in <em>Abrahams &amp; Sons v SA Railways and Harbours</em> 1933 CPD 626. At 637 WATERMEYER J stated:</p> <p>“The proper meaning of the expression ‘cause of action’ is 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. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action.”</p> <p>In <em>casu</em>, the cause of action is the right of the respondent to transfer of the properties in terms of the alleged agreements of sale. The court <em>a quo</em> dealt with the issue in the following terms;</p> <p>“Other than the above clause there is no other clause which deals with the issue of transfer of ownership. It is clear from the above clause that it does not say when exactly transfer of ownership should be effected. In the absence of an agreed date of transfer of ownership, the first defendant’s submission that prescription began to run on 6 August 2002 cannot be said to be correct. It cannot be correct because the debtor who was the seller was never placed in <em>mora</em>. The seller was never made aware that she was now supposed to effect transfer of ownership.”</p> <p>The clause relating to transfer in the alleged agreement of sale read as follows:</p> <p>“OCCUPATION, RISK AND PROFIT</p> <p>Seller shall give vacant possession of the property on or before the date of transfer. Risk and profit shall pass on to the Purchaser on the date of occupation or transfer whichever is the earlier.</p> <p>….</p> <p>….</p> <p>PAYMENT OF PURCHASE PRICE</p> <p>The purchase price shall be paid after transfer.”</p> <p>In paras 5 and 6 of the declaration in both actions the respondent set out his cause of action for an order for specific performance. Both read:</p> <p>“5.       Sometime in 2002, the plaintiff and defendant entered into a sale agreement relating to the two stands. Plaintiff thereafter complied with all his obligations in terms thereof.</p> <p>6.         Plaintiff subsequently sought to consolidate his title via registration through second Defendant’s office and realized that the first defendant was in fact opposing such overtures.”</p> <p>Generally, the making of a contract of sale does not <em>per se</em> pass ownership in the thing sold. The authorities are clear that the signing of an agreement does not automatically translate to the transfer of property but that transfer can be effected at an agreed time or upon demand. In <em>Smart v Rhodesian Machine Tools Ltd</em> 1950 (1) SA 735(SR), TREDGOLD J (as he was then) accepted the general rule that where a contract fixes no time for performance, the debtor is not in <em>mora</em> until a reasonable time for performance has elapsed and the creditor has demanded performance.</p> <p>This principle as stated above was also highlighted in <em>Asharia v Patel &amp; Ors</em> 1991(2) ZLR 276(S), wherein GUBBAY CJ outlined the applicable principle where the time for performance in an agreement has not been agreed in the agreement itself. He stated:</p> <p>“The general rule is that where the time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does not fall into <em>mora ipso facto</em> if he fails to perform forthwith or within a reasonable time. He must know that he has to perform. This form of <em>mora</em>, known as <em>mora ex persona</em>, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default. The demand, or <em>interpellatio</em>, may be made either judicially by means of a summons or extra-judicially by means of a letter of demand or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance which is not unreasonable. If unreasonable, the demand is ineffective.” </p> <p>The appellants allege that the cause of action would have arisen in 2002, with the respondent contending that demand was necessary to place them in mora for failure to abide by their obligation in terms of the alleged agreements of sale. Absent such demand, it was contended by the respondent that there would have been no cause of action. It was further contended by the respondent that the appellants had failed to show when such demand placing them in <em>mora</em> was made. To this end, it was argued that they had both failed to show when exactly prescription began to run.</p> <p>The term debt refers to anything that is owed or due, such as money, goods or services which one person is under an obligation to pay or render to another. Debt is defined in the Prescription Act as follows:</p> <p><strong>2 Interpretation</strong></p> <p>In this Act—</p> <p>“debt”, without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.</p> <p>Going by the definition of debt as contained in the Prescription Act the right of the purchaser to place a seller in <em>mora</em> is itself a debt in favour of the purchaser which debt can prescribe. In the context of this dispute, debt would constitute the right to have transfer into the respondent’s name. Critically, the Act provides that prescription starts running as soon as a debt becomes due. Section 16 of the Act reads:</p> <p><strong>16 When prescription begins to run</strong></p> <p>(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.</p> <p>(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription</p> <p>shall not commence to run until the creditor becomes aware of the existence of the debt.</p> <p>(3) A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of</p> <p>the facts from which the debt arises:</p> <p>Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could</p> <p>have acquired knowledge thereof by exercising reasonable care.</p> <p>The issue before the High Court was centered on the date that the debt became due. In considering the issue, the court <em>a quo</em> drew a distinction between a debt due under an agreement of sale and an agreement for the transfer of property. The court held that the issue of transfer of an immovable property was a separate issue which ought to have been agreed between the parties. The alleged agreements of sale which were placed before the court <em>a quo</em> were silent as to when transfer was supposed to have been effected. In <em>casu</em>, no date had been agreed upon in the alleged agreements and no evidence was led by any of the parties regarding the issue as whether demand had been made or not, and if it had, when such demand had been made.</p> <p>The question centered on when the cause of action was alleged to have arisen and the matter therefore has to be decided in the context of the pleadings filed in the <em>court a quo</em>. </p> <p>For purposes of calculating the relevant time when prescription begins to run in respect of a debt regard must be had to the date when the cause of action arose.</p> <p>In opposing the prayer for the upholding of a plea of prescription the respondent filed written submissions. The facts relied upon by the respondent were, contrary to the law, set out in the heads. It is pertinent to set the submissions in detail:</p> <ul> <li>The debt was paid through the transfer made in favour of the plaintiff’s company. Both parties believed that the obligation has been though erroneously, properly extinguished. Under the circumstances there was no knowledge that there was a debt which needed to be paid because parties believed they had performed the contract fully. Therefore, from the time the properties were registered to the nullification of the title deed, the creditor had no knowledge of the debt and prescription could not be said to be in operation; and</li> <li>The debt only arose after this Honourable Court cancelled the deed in terms of Case Number HC 6909/11. It is from this period that the plaintiff/creditor became aware of the debt, that is the time the cause of action was created. Three years have not yet elapsed from the day the court granted an order cancelling the title deed.</li> <li>It is respectfully submitted that by signing the power of attorney to pass transfer and declarations the first defendant was tendering payment of the debt, that is, performing the obligations in terms of the contract. The only issue is that payment was made to a proxy. The plaintiff believed that his rights were properly secured by his proxy, that is, the company. Clearly, under the circumstances, it cannot be said plaintiff knew that the debt was still owing.</li> </ul> <p>It is trite that after demand is made for transfer prescription would have commenced to run. The court declined to grant the plea in the absence of evidence as to when the appellants were placed in <em>mora</em> for the transfer of ownership in the stands in question.</p> <p>From the grounds raised by the appellants, the issue that arises for determination in this court is whether or not the court <em>a quo</em> erred in finding that the respondent’s claims against the appellants had not been hit by prescription. To this end it was argued on behalf of the appellants that the respondent was entitled to demand transfer upon signing the agreement and in the absence of such demand the claim had prescribed.</p> <p>The court <em>a quo</em> correctly found that for prescription to start running there was need for the respondent to place the appellants in <em>mora</em> by demanding transfer. Having found that the cause of action must be triggered by a demand the court was obliged to then determine whether or not there was such a demand and if so whether or not prescription was established. It could only have dismissed or upheld the plea upon a correct finding of the above two issues.</p> <p>Generally, a plea is the answer by a defendant to the claim by the plaintiff as set out in particulars of claim or in a declaration as the case may be. In addition to a plea which raises a defence on the merits of a claim, a defendant may also raise a special plea which has its object either to delay the proceedings or to quash the action altogether.</p> <p>The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules 1971. Order 21, r 137 specifies the manner in which a party wishing to rely on a special plea may raise such. It provides:</p> <p>SPECIAL PLEAS, EXCEPTIONS, APPLICATIONS TOSTRIKE OUT AND APPLICATIONS FOR PARTICULARS</p> <p><strong><em>137. Alternatives to pleading to merits: forms</em></strong></p> <p>(1) A party may—</p> <p>(<em>a</em>) take a plea in bar or in abatement where the matter is one of substance which does not involve going</p> <p>into the merits of the case and which, if allowed, will dispose of the case;</p> <p>(<em>b</em>) except to the pleading or to single paragraphs thereof if they embody separate causes of action or</p> <p>defence as the case may be;</p> <p>(<em>c</em>) apply to strike out any paragraphs of the pleading which should properly be struck out;</p> <p>(<em>d</em>) apply for a further and better statement of the nature of the claim or defence or for further and better</p> <p>particulars of any matter stated in any pleading, notice or written proceeding requiring particulars.</p> <p>[Subrule amended by s.i. 120 of 1995]</p> <p>In dismissing the special plea filed by the first appellant the court said:</p> <p>“As I have already stated, following the agreement of sale the purchaser (plaintiff) ought to have demanded transfer of ownership from the seller (first defendant) thereby placing the debtor in <em>mora</em>. Although the plaintiff in his summons says that he demanded transfer of ownership, nothing in the papers shows when demand was done. With this the court cannot tell when prescription began to run….in the absence of evidence showing when exactly the first defendant was placed in mora by the plaintiff for transfer of ownership of the properties from the first defendant to the plaintiff, I am not inclined to grant the first defendant’s special plea.”</p> <p>The second appellant’s plea also got similar treatment with the court remarking as follows:</p> <p>“The problem I am faced with is that I cannot tell from the papers when plaintiff demanded transfer of ownership of the stands following the agreement of sale. The plaintiff simply said that when he demanded transfer of ownership the first respondent refused to effect it. However he does not say when he demanded transfer. On the other hand the defendant disputes that the parties ever entered into an agreement of sale <em>vis-à-vis</em> the two stands. So under the circumstances there is no way the plaintiff could ever have demanded transfer of ownership from the defendant. What this simply means is that the first defendant is saying that she was never placed in mora. If I go by the plaintiff’s submissions all I can say is that although demand for transfer was made thereby placing the first defendant in <em>mora</em>, the date on which transfer should have been made is not stated and therefore that is unknown. Under the circumstances I cannot tell when prescription should have begun to run. For these reasons it cannot be said that the plaintiff’s claim is prescribed.”</p> <p>The court <em>a quo</em> found that the parties had not made it clear in the agreement of sale as to when transfer was to be effected. The court was correct. However, it then went onto to find that the purchaser should have put the seller in <em>mora</em> by demanding transfer and that that is the date from which the debt would have become due. I think the court <em>a quo</em> cannot be faulted in concluding as it did that the cause of action as related to the obligation to transfer where an agreement of sale does not specify a time, such obligation only arises upon demand by the purchaser.</p> <p>In a plea of prescription the <em>onus</em> is on the defendant to show that the claim is prescribed but if in reply to the plea the plaintiff alleges that prescription was interrupted or waived, the <em>onus</em> would be on the plaintiff to show that it was so interrupted or waived. This principle was clearly set out in <em>Cassim v Kadir</em> 1962(2) 473 (NPD), at 475H-C as follows:</p> <p>“In regard to the second answer to the plea of prescription, namely that there has been interruption, the evidence falls very far short of what is required. It is true that the plaintiff in his evidence verbally admitted signing the deed of donation, and that he had, at some time or other admitted that he was liable to transfer the property to the plaintiff. Even if I am to assume at this stage, for present purposes only, that plaintiff’s evidence is true, I am quite unable to determine from that evidence the date when such admission of liability was made. It is clear that defendant, according to plaintiff’s own evidence, maintained in 1955, or thereabouts, that plaintiff was not entitled to transfer, and disputed plaintiff’s alleged right to transfer of the property now claimed. He said, to use the plaintiff’s own words, in evidence, that plaintiff “had nothing”, meaning, quite clearly, that plaintiff had no right to the property which he seeks to claim. As I understood him, however, Mr Raftesath did not seriously urge that this interruption had been proved, and I do not think it is necessary to analyse the evidence further; nor is it desirable at this stage, for to do so would make it inevitable for me to express an opinion on the quality of the evidence given by the plaintiff in regard to the vital issue as to whether the deed was ever signed, and how the signed deed came to be lost.”</p> <p>In <em>Yusaf v Bailey</em> <em>and Others</em> 1964(4) SA 117, the question of <em>onus</em> regarding the special plea of prescription was considered as follows:</p> <p>“… A special plea was filed to the effect that plaintiff’s claim was prescribed by virtue of s 3(2) of Act 18 of 1943, as the issue of Drum was published on 20 June, 1961, and the summons was served on 29 June 1962. The replication to this special plea is that the article was brought to the plaintiff’s knowledge for the first time on or after 7 July, 1961, and that he ascertained the identity of the defendants on the same date as the defamatory article was first brought to his knowledge..</p> <p> </p> <p>The point therefore arises whether the <em>onus </em>lies on the defendants to establish the special plea, <em>viz</em>, that the facts are such as to entitle them to a dismissal of the action because the claim has become prescribed or whether the onus lies on the plaintiff to establish the allegations contained in the replication to the special plea.</p> <p>The <em>onus</em> then being on the plaintiff to satisfy the court in terms of his replication to the special plea that his claim had not become prescribed before service of summons and as the only evidence in this regard is that of the plaintiff himself consideration, as to whether that onus had been discharged cannot be divorced from an assessment of his credibility as a witness. Consequently, no decision on the special plea could, as originally suggested, be given before hearing the evidence on the whole case.”  </p> <p>After being served with the special plea of prescription the respondent should have replicated. The purpose of a replication is to inform the court and the defendant of the plaintiff’s rebuttal to the special plea. The failure by the respondent to file a replication to the special plea means that there are no disputes for determination on the special plea.  In the absence of such replication there would be no issue for determination by the court <em>a quo.</em></p> <p>When one speaks of the need to discharge an onus, it immediately becomes clear that there is an evidentiary burden that must be met. There is no suggestion that such burden as required to be met was met by documents filed of record. There were no affidavits placed before the court <em>a quo</em>.</p> <p>Neither of the parties led evidence. Thus there was no evidence as to when demand for transfer was made. There was no evidence as to when the cause of action actually arose and given the fact that this was dependent on whether or not the appellants were placed in <em>mora</em>, the court was left in suspense on these very crucial issues.  The court seems to have been alive to the fact that there was a need for a factual basis to be placed before it to facilitate a determination on the crucial issue of when prescription could be said to have started running.</p> <p>The remarks by the learned judge show that the court made a decision on the special pleas in the absence of evidence. By adopting such an approach the court erred. It was critical for the court to understand the nature of the defences of prescription. The court disposed of the special pleas in the same manner as provided for exceptions and applications to strike out in the rules of the High Court 1975. The distinction between these procedures was highlighted by MURRAY CJ in <em>Reuben v Meyers</em> 1957(4) SA 57(SR) at 58C-D, wherein the learned judge stated:</p> <p>“According to the modern practice a defence of prescription is raised by special plea; in the Courts of Holland this was done by exception, a term which as pointed out by INNES C.J., in Western Assurance Co. v D Caldwell’s Trustee, 1918 AD 262 at p 270, is used not in the narrow sense applied to it in South Africa (and Southern Rhodesia), but as covering a number of what would here be called special pleas.”</p> <p>A special plea is an objection on the basis of certain facts which do not appear in the plaintiff’s declaration or particulars of claim and has the effect of either destroying or postponing the action. The various forms of special pleas and the rationale underlying the procedure were set out by GILLESPIE J In <em>Doelcam  (Pvt) Ltd v Pichanick &amp; Others</em> 1999 (1) ZLR 390 (H), at 396B-F in which he said:</p> <p>“The purpose of a special plea is to permit a defendant to achieve prompt resolution of a factual issue which founds a legal argument that disposes of the plaintiff’s claim. Special pleas are three in kind. The plea in bar, by which a party may interpose a purely formal objection to the jurisdiction of the court. The plea is available as a plea to the jurisdiction or as a plea for the recusal of a judge and in no other case. Other special pleas are available to disclose some ground either for quashing or for delaying proceedings. Both are usually termed pleas in abatement, although that expression is properly used to describe the declinatory, rather than merely dilatory plea. The plea in abatement, strictly so called, avers some good ground, not disclosed in the declaration, which otherwise is admitted, for denying the plaintiff relief. The dilatory plea advances some fact, not disclosed in the declaration, which is otherwise admitted, and which entitles the defendant to a stay of proceedings.</p> <p>Since a special plea involves the averment of a new fact, it is susceptible of replication and of a hearing at which evidence on this new fact alone may be led.”  </p> <p> </p> <p>The above <em>dictum</em> shows that a special plea enables a litigant to obtain prompt resolution of a dispute because it either delays the proceedings or quashes them. Because of its ability to extinguish a claim there is need for a judge faced with such a plea to hear evidence from the parties. Herbstein &amp; Van Winsen,: The Civil Practice of the Supreme Courts of South Africa 5 ed Vol 1 at pp599-600 in explaining the essential differences between an exception and a special plea, articulated the need to adduce evidence in the case of a special plea as follows:</p> <p>“The essential difference between a special plea and an exception is that in the case of the latter the excipient is confined to the four corners of the pleading. The defence raised on exception must appear from the declaration itself; the excipient must accept as correct the allegations contained in it and he may not introduce any fresh matter. Special pleas, on the other hand, do not appear <em>ex facie</em> the pleading. If they did, then the exception procedure would have to be followed. Special pleas have to be established by the introduction of fresh facts from outside the circumference of the pleading, and those facts have to be established by evidence in the usual way. Thus, as a general rule, the exception procedure is appropriate when the defect appears <em>ex</em> <em>facie </em>the pleading, whereas a special plea is appropriate when it is necessary to place facts before the court to show that there is a defect. The defence of prescription appears an exception to this rule for it has been held that the defence should be raised by way of special plea even when it appears ex the plaintiff’s particulars of claim that the claim has prescribed, apparently because the plaintiff may wish to replicate a defence to the claim of prescription, for example an interruption.”</p> <p>In Beck’s Theory and Practice of Pleading in Civil Actions 6th ed., the learned author Isaacs at p 152 states:</p> <p>“Pleas in bar and pleas in abatement differ from exceptions precisely in this, that they do always introduce fresh matter which must be proven by evidence.”</p> <p> </p> <p>In fact, when one has regard to the rules of the High Court one discerns a difference in the manner in which special pleas and exceptions ought to be dealt with. R 140 is pertinent in this regard. The rule reads:</p> <p><strong><em>140. Complaint by letter before applying to strike out or filing exception</em></strong></p> <p>(1) Before—</p> <p>(<em>a</em>) making a court application to strike out any portion of a pleading on any grounds; or</p> <p>(<em>b</em>) filing any exception to a pleading;</p> <p>the party complaining of any pleading may state by letter to the other party the nature of his complaint and call</p> <p>upon the other party to amend his pleading so as to remove the cause of complaint.</p> <p>[Subrules amended by s.i. 43 of 1992]</p> <p>(2) The costs of any such necessary letter and of any matters incidental to it, including any necessary</p> <p>conferences with another legal practitioner, shall be allowable on taxation.</p> <p>[Subrule amended by s.i. 277 of 1981]</p> <p>(3) In dealing with the costs of any motion to strike out or of any exception, the provisions of this rule shall</p> <p>be taken into consideration by the court.</p> <p>Whilst prescription is by way of a plea, an exception is raised by way of a court application. In terms of our rules of court an application shall be accompanied by an affidavit from a deponent who can swear positively to the facts contained therein. Critically there is no provision for the filing of a court application where a special plea is filed, and when regard is had to the nature of the plea of prescription that a determination on the facts as to when the cause of action arose, it must by implication become obvious that a factual dispute must be decided. This can only be determined by the parties leading <em>viva voce</em> evidence unless the dates are not in dispute.</p> <p>This position of the law was put beyond question by BEADLE CJ in <em>Edwards v Woodnut NO</em> 1968 (4) SA 184(R), in which he stated the following:</p> <p>“the basic difference, however, between an exception and a plea in abatement is that in the case of a plea in abatement evidence must be led, whereas in the case of an exception the facts stated in the pleadings must be accepted.”</p> <p>It can therefore be accepted as settled that evidence is necessary when disposing of a matter in which a special plea of prescription is raised. The rationale behind this is that where a party raises a special plea as a defence, new facts arise and because of the introduction of fresh facts which did not appear in the declaration, there is need for a court to hear the evidence of the parties where facts are disputed before making a ruling on the plea.</p> <p>In <em>casu,</em> the court <em>a quo</em> disposed of the matter in the absence of such evidence. Clearly, a dispute of fact as to when the cause of action arose was evident from the special plea and this could only have been resolved through <em>viva voce</em> evidence.</p> <p>The respondent did not raise an objection to the special pleas, he filed heads of argument. The purpose of heads of argument is to expound on the law applicable to the facts placed before the court, and one cannot plead through written submissions. It is also trite that one cannot adduce evidence through heads of argument, but one may do so either in affidavits or <em>viva voce</em> evidence. In <em>casu</em>, there were no affidavits filed which could have justified the manner of disposal of the dispute by the court <em>a quo.</em> In his book Extinctive Prescription, the learned author M M  Loubser, says the following at p8:</p> <p>“From one point of view, extinctive prescription simply concerns questions of fact, namely whether a particular period of time, prescribed by statute in respect of a particular obligation, has passed, and whether other conditions prescribed by statute on prescription have been met. If so, and if the debtor chooses to rely on it, prescription takes effect.”</p> <p>The failure by the court <em>a quo</em> to call evidence was akin to a court which determines a matter through the application procedure in the face of material disputes of fact. The learned judge in the court failed to appreciate that prescription is a defence and therefore a matter of substance. The court <em>a quo</em> and the parties before it, ignored the nature of the pleading that was central to the dispute. Essentially what had to be disposed of was a plea. Its nature did not change by virtue of having the adjective special placed before it. It remained a plea which is a defence and which the court could only determine after hearing evidence unless the facts surrounding the plea were common cause or admitted. The facts were in dispute. It was therefore a matter for a trial cause. It is referred to as a special plea mainly due to its ability to destroy the action or postpone the proceedings.</p> <p>Curiously the court disposed of the matter on a basis other than that argued by the parties. It was up to the respondent to prove that prescription did not start to run until demand for transfer would have been made. This issue is a question of fact. None of the pleadings filed on behalf of the respondent raises this issue.</p> <p>In the event, the court a <em>quo</em> did not properly exercise its jurisdiction. In my view due to the manner of pleading or lack thereof, there were no issues for determination before the court <em>a quo</em>. The failure by the respondent to file a replication to each of the pleas of prescription disabled the court <em>a</em> <em>quo</em> from determining the real issues between the parties. There was no basis on the record justifying the dismissal by the court a quo of the pleas of prescription. In so doing the court <em>a quo</em> misdirected itself.</p> <p>In view of the failure to adhere to the correct procedure the judgments by the court <em>a</em> <em>quo</em> must be set aside. In my view the court should have in terms of the rules given directions to the parties on how the matter should have proceeded. There was nothing which precluded the court from directing the respondent to file a replication and from thence to hear the matter on the issues raised in the plea and the replication. In the circumstances it seems to me just that this is the procedure that the court should adopt in order for the special pleas to be properly dealt with, and an order for the remittal of the matter to the court <em>a quo</em> would best achieve this.</p> <p> </p> <p>In the premises the following orders will issue:</p> <p>Case Number SC 457/15</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside.</li> <li>The matter is remitted to the court <em>a quo</em> for a proper determination of the plea of prescription on evidence.</li> </ol> <p>Case Number SC 458/15</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside.</li> <li>The matter is remitted to the court <em>a quo</em> for a proper determination of the plea of prescription on evidence.</li> </ol> <p>    </p> <p><strong>HLATSHWAYO JA:</strong>      I agree</p> <p> </p> <p><strong>BHUNU JA:</strong>                    I agree</p> <p><em>Wintertons</em>, legal practitioners for the appellants</p> <p><em>Ngarava, Moyo &amp; Chikono</em>, legal practitioners for the first respondent.</p> <p>At p 280</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/2018/5/2018-zwsc-5.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=45629">2018-zwsc-5.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/2018/5/2018-zwsc-5.pdf" type="application/pdf; length=189168">2018-zwsc-5.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/performance">Performance</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/specific-performance">Specific performance</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription-plea">prescription (Plea)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/plea-abatement">Plea in abatement</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/distinction-exception">distinction from exception</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/period-prescription">Period of prescription</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div></div></div> Thu, 26 Apr 2018 08:43:08 +0000 admin 8762 at https://old.zimlii.org