parol evidence rule https://old.zimlii.org/taxonomy/term/9869/all en Pepukai v Zimi (HH 488-20, HC 838/20) [2020] ZWHHC 488 (23 July 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/488 <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>WILLIAM PEPUKAI</p> <p>versus</p> <p>ITAYI ZIMI</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 4 &amp; 23 July 2020</p> <p> </p> <p> </p> <p><strong>Opposed matter</strong></p> <p> </p> <p><em>K Maeresera</em>, for the applicant</p> <p><em>H Mutasa</em>, for the respondent</p> <p> </p> <p> </p> <p> DUBE J</p> <p> [1] This is an application for summary judgment brought in terms of Order 10 r 64 (1) of the High Court Rules, 1971.</p> <p>[2] The brief facts surrounding this dispute are as follows. The respondent signed an acknowledgment of debt (AOD), wherein he admitted owing the applicant the sum of ZW$400.000.00.He failed to pay the debt acknowledged resulting in the applicant issuing summons against him claiming payment on the basis of the AOD. The respondent entered appearance to defend the action. The applicant applies for summary judgment on the basis that the respondent does not have a <em>bona fide</em> defence to the claim and that the appearance to defend has been entered solely to delay an unassailable claim because the respondent acknowledged in writing that he owes the sum of ZW$400 000.00 and renounced all the legal exceptions which would otherwise have been available to him.</p> <p> [3]   The respondent refutes that the applicant advanced to him ZW$400 000.00 but that averred that he was advanced the sum of USD$10 000.00. He maintained that he was coerced into signing the AOD for an amount never availed to him.</p> <p>[4]   The issue is whether the respondent was advanced and owes the applicant the sum acknowledged. Order 10 r 64 (1) makes provision for summary judgment and stipulates as follows;</p> <p> </p> <p> </p> <p>“64. Application for summary judgment</p> <ol> <li>Where the defendant has entered appearance to a summons, the plaintiff may, at any time before a pre-trial conference is held, make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and costs.”</li> </ol> <p>[5]   The objective of  the summary judgment procedure was dealt with in the case of <em>Bank of Credit &amp; Commerce Zimbabwe Ltd v Jani Investments (Pvt) Ltd</em> 1983 (2) ZLR 317 (HC) where the court remarked as follows,</p> <p>“It is true that summary procedure is the principal means by which unscrupulous litigants, seeking only to delay a just claim by entering appearance to defence, are thwarted. It is thus of the greatest importance that the efficacy of the procedure should not be impaired by technical formalism”</p> <p>           See also, <em>Rex</em> v <em>Rhodium Investments Trust Pvt Ltd</em> 1957 R&amp;N 723, <em>Stationery Box</em> <em>(Pvt) Ltd</em> v <em>Nateon (Pvt) Ltd &amp; Anor</em> 2010 (1) ZLR 227 (H), <em>Beresford Land Plan (Pvt) Ltd</em> v <em>Urquhart</em> 1975 (1) RLR 260 (AD); 1975 (3) SA 619, <em>Chrismar (Pvt) Ltd</em> v <em>Stutchbury</em> 1973 (1) RLR 277.</p> <p>[6]   The purpose of the summary judgment procedure is to enable a plaintiff who has an unanswerable case to obtain immediate relief by way of an application for summary judgment against a difficult defendant than having to wait for the matter to be dealt with by way of trial proceedings in the ordinary course. The plaintiff is entitled to apply for summary judgment on a claim based on a liquid document, for a liquidated amount in money, for the delivery of specified movable property or for ejectment of a defendant. An applicant in a summary judgement application must show that the applicant has no <em>bona fide</em> defence to the action filed and  has entered appearance to defend solely for the purposes of delaying proceedings. There must be no disputes of fact arising from the facts in which case, the plaintiff is entitled as a matter of law, to judgment.</p> <p> [7] The defendant must proffer a <em>bona fide</em> defence. He must set out his defence to the application with, “such a degree of candour and particularity,” as will enable the court to apply its mind to the b<em>ona fides</em> of his defence, see <em>Merchantile Bank Ltd</em> v <em>Star Power CC &amp; Anor</em> 2003 (3) SA 309. In the case of <em>Kingstones Ltd </em>v<em> LD Ineson (Pvt) Ltd </em>2006 (1) ZLR 451 (S), at 458F, the court held that not every defence raised by the defendant will succeed in defeating a plaintiff’s claim for summary judgment and held  a <em>bona fide</em> defence to be,</p> <p>“...a plausible case with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts if established, would entitle him to succeed.’’</p> <p>See also <em>Jena</em> v <em>Nechipote</em> 1986 (1) ZLR 29 (S) ;<em> Mbayiwa </em>v <em>Eastern Highlands Motel (Pvt)</em> <em>Ltd</em> S-139-86.</p> <p>[8]   A defendant to summary judgment proceedings must disclose the nature of his defence and the material facts he relies on. He is not required to deal with his case exhaustively and to prove his defence, see <em>Stationary Box (Pvt) Ltd </em>v<em> Nation (Pvt) Ltd</em> 2010 (1) ZLR 277. He must merely allege facts, which if he can succeed in establishing them at the trial, would entitle him to succeed in his defence”. He must disclose a <em>prima facie</em> defence and set it out with such particularity so as to enable the court to make a decision whether he has a <em>bona fide</em> defence to the claim. See also <em>Hales </em>v<em> Doverick Inv (Pvt) Ltd 1998</em> (20 ZLR 235(H); <em>Cargo Marketing International [Pvt) Ltd </em>v<em> Dynamic Afreight (Deutchland) GMBH</em> SC 170/ 97</p> <p>[9] The respondent took issue with the applicant’s failure to allude to the underlying contract and background facts giving rise to the signing of the AOD in his founding affidavit. In <em>Barend van Wyk v Tarcon (Pvt) Ltd</em> SC 49/14, the court said the following of claims premised on an AOD signed subsequent to the original transaction,</p> <p>“...it is competent to sue a debtor on his admission of liability as set out in an acknowledgement of debt, without founding the action on the original transaction giving rise to that acknowledgement. See <em>Mahomed Adam (Edms) Beperk v Raubenheimer</em> 1966 (3) SA 646 (TPD).”</p> <p> It is competent for a litigant to premise a claim on an AOD without making any reference to the underlying contract or transaction which gave rise to the AOD. A court   dealing with a summary judgement application premised on an AOD need not investigate the terms of the underlying agreement or transaction. The respondent properly premised his case on an AOD.</p> <p>[10]   A respondent who challenges an AOD on the basis that he was forced to sign the AOD, must place before the court sufficient and material details of his defence that enables a court to decide whether he has a <em>bona fide</em> defence to the claim and whether he indeed was forced to sign the AOD. He must at least state how he was forced to sign the AOD. He must state the exact nature of the coercion used to make him sign the AOD. It is not sufficient for him  to merely state that he was forced to sign the AOD without giving details regarding how he was forced to sign it. Failure to give the allegations of coercion may lead the court to draw an inference that he was not forced to sign the AOD.</p> <p>[11] In <em>Knocker </em>v<em> Standard Bank of SA</em> 1933 AD 128 at 132 the court held that “... the person who signs a document is acquainted with its contents”.  DE<em>RH Christie in Business Law in</em> <em>Zimbabwe</em>, 1985 at p 67 echoes the same position and states thus,</p> <p>“The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were not upheld any business enterprises would become hazardous in the extreme. The general rule, sometimes known as the <em>caveat subscriptor</em> rule is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…”</p> <p>[12]   Similar sentiments were expressed in the case of <em>Muchabaiwa </em>v<em> Grab Enterprises (Pvt) Ltd</em> 1996 (2) ZLR 691(SC) where the court stated the <em>caveat subscriptor</em> rule as follows;</p> <p>“The general principle which applies to contracts, and commonly designated as caveat subscriptor, is that a party to the contract is bound by his signature, whether or not he has read or understood the contract, or the contract was signed with blank spaces later to be filled in. Expatiating on this principle in <em>National and Grindlays Bank </em>v <em>Yelverton</em> 1972 (1) RLR 365 (G) at 367; 1972 (4) SA 114 (R) at 116G-H, DAVIES J cited with approval the following statement by INNES CJ in <em>Burger</em> v <em>Central South Africa Railways</em> 1903 TS 571 and 578 (decided before the promulgation of s 6 of the General Laws Amendment Act):“It is a sound principle of law that a man, when he signs a contract, is taken to be bound by the ordinary meaning and effects of the words which appear over his signature.”</p> <p>[13]   The parole evidence rule prevents a party to a written contract from leading extrinsic evidence contradicting, adding or subtracting terms of a contract in a bid to alter the written contract. In the case of <em>Union Gvt </em>v<em> Viavini Ferron Pipes (Pty) Ltd</em> 1941 AD 43 at p 47, the court stated as follows,</p> <p>“Now, this court has accepted the rule that when a contract has been reduced to writing, the writing is, in general, regarded as the exclusive memorial of the transaction, and in a suit between the parties no evidence to prove its terms may be given save the document or secondary evidence of its contents, nor may the contents of such document be contradicted, altered, added to or varied by parole evidence.”</p> <p>[14] In the case of <em>Johnston v Leal</em> 1980 (3) SA 927 (A) CORBETT JA said the following of the parole evidence rule at p 943B-E:  </p> <p>“... it is clear to me that the aim and effect of this rule is to prevent a party to a contract which has been integrated into a single and complete written memorial from seeking to contradict, add to or modify the writing by reference to extrinsic evidence and in that way to redefine the terms of the contract. “</p> <p> Where a written transaction is entered into resulting in a written document recording the transaction being executed between parties, any oral evidence contradicting the position in the document is inadmissible.</p> <p>[15]   The defendant does not deny that he signed the document sued upon. His predicament is that he has chosen not to tell anybody how he was forced to sign the document.  In his opposing affidavit, the respondent did not deal with the allegations of coercion, threats or duress. His counsel seems to be not privy to the allegations as well. The respondent has not taken the court into his confidence by failing to canvass details of these allegations.  He did not report the alleged threats to the police nor did he take any steps to have AOD invalidated. He was content with the AOD and its consequences. He waited until the applicant approached the courts to recover the debt to allege that he was forced to sign the AOD. He should not expect this court to believe him. Ultimately, the respondent has not alleged facts in his opposing affidavit upon which if he can succeed in establishing them at the trial, would entitle him to be successful in his defence. The court can reasonably infer that he was not forced to sign the AOD. The respondent made himself liable to the applicant in the sum acknowledged.</p> <p>[16] The presumption that a person who signs a document is acquainted with its contents applies to the circumstances of this case. Once a person appends his signature to a document, he accepts the contents therein. If he cannot show that he was forced to sign the document, he becomes liable for the consequences of the document he signed. In the case of Oasis<em> Medical Centre </em>v<em> Beck and Anor</em>, HH 84/16 at p 5 of the cyclostyled judgment, the court stated as follows;</p> <p>“The signer must beware. Once a person appends his or her signature to a document, it must be known that they are liable for the ensuing consequences and obligations. It was the applicant’s responsibility to read the information about what the document entails before entering into the agreement. I do not believe it is proper for the applicant to try and challenge clause 27 of the lease agreement at this moment in time. It remains bound by its signature.”</p> <p>[17]   I am unable to find that the respondent was forced to sign the AOD. The respondent is bound by the contents of the AOD. In the absence of any evidence of threats or duress, the caveat <em>subscriptor</em> rule binds the respondent. Liability having been established, that puts the matter to rest.</p> <p>[18] The respondent submitted that the dispute over what was advanced cannot be resolved on the papers and urged the court to dismiss the application. Clearly the applicant’s case is that it advanced to the respondent ZW$400 000.00 which the respondent disputes. I do not agree with the respondent that it is common cause that although the respondent signed an AOD suggesting that he received ZW$400 000.00, he in fact was advanced USD$10 000. 00. This assertion is not supported on the papers and is resolved by simply looking at the flawless circumstances of the execution of the AOD. The AOD is the exclusive memorial of the agreement between the parties. The respondent’s oral evidence that he was advanced USD10 000.00 does not find favour with the court in the presence of a properly executed AOD. The AOD does not speak to figure of USD10 000.00. The respondent sought to create an artificial dispute of fact by introducing oral evidence to contradict the transaction recorded in the AOD. The parole evidence rule bars the respondent’s attempt to introduce oral evidence of new terms of the AOD. Allowing the respondent to do so would amount in him redefining the agreement between the parties. The respondent’s defence cannot be explored past the AOD.</p> <p>[19] The respondent suggested that the underlying oral loan agreement was tainted with illegality in that having advanced USD10 000.00 to the respondent, the applicant applied an exchange rate which is contrary to s 22 of the Finance Act No. 2 of 2019 and hence acted contrary to a provision of a statute and that the transaction is <em>null and void ab initio</em>. He contended that the sum advanced converted to ZW$173 000.00 at the interbank rate of 1: 17 which amount the respondent owes and is prepared to pay.</p> <p>[20] The Finance Act provides as follows,</p> <p>“that after the first effective date any variance from the opening parity rate shall be determined from time to time by the rate or rates at which authorized dealers exchange the RTGS dollar for the United States Dollars on a willing seller willing -buyer basis.’’</p> <p> </p> <p>This section bars any exchange of currency other than on the basis of this section. There is no suggestion from the AOD of any conversion of money having taken place. Having rejected the argument that the respondent was advanced USD 10 000.00, this argument falls away.</p> <p>[21] The defendant has no defence at law to exonerate himself from liability.</p> <p> Accordingly, it is ordered as follows;</p> <ol> <li>The application for summary judgment be and is hereby granted</li> <li>The respondent shall pay to the applicant the sum of ZW$400.000.00 together with interest thereon at the prescribed rate of interest calculated from the date of summons to the date of full and final payment</li> <li>The respondent shall pay the applicant’s costs</li> </ol> <p> </p> <p><em>Chizengeya Maeresera &amp; Chikumba</em>, applicant’s legal practitioners</p> <p><em>Gill, Godlonton &amp; Gerrans</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/488/2020-zwhhc-488.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31762">2020-zwhhc-488.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/2020/488/2020-zwhhc-488.pdf" type="application/pdf; length=343369">2020-zwhhc-488.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/caveat-subscriptor">Caveat subscriptor</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-0">Evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/parol-evidence-rule">parol evidence rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/integration-rule">integration rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-need-not-be-accepted-constituting-entire-contract-between-parties">when need not be accepted as constituting entire contract between parties</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-parol-evidence-may-be-led">when parol evidence may be led</a></li><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/evidence-2">EVIDENCE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/parole-evidence">Parole evidence</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/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-summary-judgment">application for summary judgment</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/2016/84">Oasis Medical Centre (Pvt) Ltd. v Beck &amp; Another (HH 84-16 , HC 4808/15, Ref Case No. 4448/15) [2016] ZWHHC 84 (27 January 2016);</a></div></div></div> Wed, 12 Aug 2020 14:27:05 +0000 Sandra 9824 at https://old.zimlii.org Chirombo v Mutamburo (HH 42-20, CIV 'A' 182/17 Ref Case No. MC 304/16) [2020] ZWHHC 42 (19 December 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/42 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>WILLIAM H. CHIROMBE</p> <p>versus</p> <p>JOHN MUTAMBURO</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUREMBA &amp; MANZUNZU JJ</p> <p>HARARE, 4 July, 2019 and 19 December 2019                              </p> <p> </p> <p> </p> <p><strong>Civil Appeal</strong></p> <p>                                           </p> <p><em>T. M Takawira,</em> for the appellant</p> <p>Respondent in person</p> <p> </p> <p> </p> <p>            MANZUNZU J: This is an appeal against the decision of the Magistrate sitting at Marondera on 23 May 2017 where the plaintiff’s claim was dismissed with no order as to costs. The appellant was the plaintiff in the lower court with the respondent as defendant. The appellant claimed among other remedies arrear rentals and holding over damages. The prayer for cancellation of the lease agreement and eviction was abandoned at trial as that was overtaken by events. After a full trial the appellant’s claim was dismissed. The appellant initially raised 4 grounds of appeal before abandoning the 3rd and 4th ground at the hearing. The two grounds of appeal relied upon are:</p> <p>“1.  The learned magistrate erred in fact and law in dismissing the appellant’s claim based on the reasoning that the lessor has the onus to prove non-payment of arrear rentals despite the law clearly stating that the lessee has the burden to prove payment of alleged arrear rentals. Specifically, the court erred in dismissing appellant’s claim in the absence of proof that respondent had indeed paid the claimed rentals.</p> <ol> <li>The learned magistrate erred in fact and in law in making a finding that the lease agreement had been orally varied by failing to consider the non-variation clause in the lease agreement and the parole evidence rule.”</li> </ol> <p> </p> <p>            The background to this matter is that appellant leased his stand 2792 Rujeko North Township Marondera to the respondent. A written lease agreement was drawn and signed by the parties. It was a 4 year lease agreement running from 1st March 2013 to 1st March 2017. In 2016 the appellant sued the respondent for $2 800 arrear rentals and holding over damages. After hearing evidence the magistrate dismissed the plaintiff’s claim. The court made certain findings of fact. Key findings of fact which led to the dismissal of the appellant’s claim were that appellant had ceded his rights to receive rent to one Maphious Mutonhori the prospective new owner to the property. Furthermore, that the respondent had proved that he paid the said arrear rentals to the said Maphious Mutonhori.</p> <p>            The grounds of appeal allege misdirection on the part of the Magistrate on both the findings of fact and law. The case of <em>Charuma Blasting &amp; Earthmoving Services (Pvt) Ltd</em> v <em>Njanjai &amp; Others</em> 2001 (1) ZLR 85 SC set the circumstances under which an appeal court can interfere with the decision of the court <em>a quo</em>, per Sandura JA.</p> <p>            “An appeal court will generally not interfere with the exercise of a discretion of a lower court.             However the appeal court is entitled to substitute its discretion for that of the lower court where       the lower court’s exercise of its discretion was based on error such as where it has acted on a     wrong principle, or took into account extraneous or irrelevant matter or did not take into account            relevant considerations or it was mistaken about facts.”</p> <p> </p> <p>a) Ground of Appeal No. 1</p> <p>            The appellant’s first ground of appeal attacks the judgment of the court <em>a quo</em> from two angles. The first being that the court applied a wrong principle of law when it pronounced that the lessor has the onus to prove non-payment of arrear rentals. A reading of the judgment is clear in that nowhere did the court say lessor has a duty to prove non-payment. The closest to that was when the court stated, “The plaintiff bears the onus of proof in relation to (a) and (b) but the lessor must prove payment.” Paragraph (a) and (b) in the judgment relates to proof for the existence of the contract and the lessor’s duties to the contract. The use of the word “lessor” in the sentence quoted above was an obvious mistake where it was meant to be “lessee” otherwise no logic can be drawn if the word lessor is used.</p> <p>            It is incorrect as suggested by the appellant in the heads that the claim was dismissed on the basis that the court had reasoned that the lessor had the onus to prove non-payment.</p> <p>            The second leg of this ground of appeal is that there was no proof of payment of rentals by the respondent. The judgment is clear in this aspect. It was the court’s finding that the rightful recipient to the rent was Maphious Mutonhori who corroborated the respondent’s evidence and also confirmed receipt of the rentals as per their prior trio agreement. That finding is based on evidence on record. We did not find any misdirection on the part of the court <em>a quo</em> in regard to this.</p> <p>b) Ground of Appeal No. 2</p> <p>            This ground of appeal attacked the judgment in that Magistrate erred in his finding that the lease agreement was varied orally. What is clear from the judgment is that no terms of the lease agreement was varied. The oral agreement only dealt with the issue of who was entitled to receive rent. In other words the appellant ceded his rights to receive rent to Maphious Mutonhori who for all intents and purposes took appellant’s legal position. An attempt was also made by the appellant to rely on the parole evidence rule. The parole evidence rule is a principle that preserves integrity of written documents. The rule applies to integrated contracts i.e. where parties acknowledge in writing that the document or statement is the complete and exclusive declaration of their agreement.</p> <p>            The findings of the court <em>a quo</em> was that there was a cession of rights in that as a result of the verbal agreement the existing creditor (appellant) ceased to be a creditor and a new creditor (Maphious Mutonhori) became a new creditor. Such an agreement in our view cannot be defeated by a non-variation clause or principle of parole evidence rule.</p> <p>            We found no merit in this ground of appeal.</p> <p>            The appeal cannot succeed. Accordingly the appeal is dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p>MUREMBA J agrees:………………………………..</p> <p> </p> <p> </p> <p><em>Mupanga BhatasaraAttorneys</em>, appellant’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/42/2020-zwhhc-42.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22281">2020-zwhhc-42.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/2019/42/2020-zwhhc-42.pdf" type="application/pdf; length=205403">2020-zwhhc-42.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/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-appeal">Grounds (Appeal)</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/evidence-0">Evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parol-evidence-rule">parol evidence rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-parol-evidence-may-be-led">when parol evidence may be led</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lease">Lease</a></li></ul></span> Thu, 30 Jan 2020 07:31:35 +0000 Sandra 9474 at https://old.zimlii.org Murwisi v Harvest Global (Pvt) Limited (HH454-19, HC 11030/18) [2019] ZWHHC 454 (16 July 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/454 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ANDREW MURWISI</p> <p>versus</p> <p>HARVEST GLOBAL (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATHONSI  J</p> <p>HARARE, 25 June  &amp; 3 July 2019</p> <p> </p> <p> </p> <p><strong>Civil Trial </strong></p> <p> </p> <p> </p> <p><em>M Mavhiringidze, </em>for the plaintiff      </p> <p><em>P Kawonde</em>, for the defendant</p> <p> </p> <p>MATHONSI J: The plaintiff seeks from the defendant payment of the sum of US$32 000 together with interest and costs of suit which he says represents arrear rentals due by the defendant in respect of a lease agreement signed by the parties on 18 January 2017. In terms of that lease agreement, the plaintiff leased to the defendant business premises known as No. 20 Nyanga Road, Rusape for use as a betting shop and offices. The lease was for a fixed period of about one year from 18 January 2017 to 28 February 2018.</p> <p>In his declaration the plaintiff made the averments that indeed the lease was to terminate on 28 February 2018 and that the rent was $4 000 per month but did not plead that in fact the rent for the entire duration of the lease period in the sum of $48 000 had been paid upon signing the agreement. Instead the plaintiff pleaded that the defendant took occupation of the premises and is still in such occupation but has failed to pay the agreed rent for the period from March to November 2018 giving rise to rent arrears of $32 000.</p> <p>The defendant entered appearance to defend and proceeded to file a plea and counter-claim. It averred that although the parties entered into the lease agreement as alleged, it never took physical occupation of the premises because doing so was predicated upon obtaining an operating licence, the authorized use in terms of the lease agreement having been a betting shop and offices. The defendant further averred that advance rent for the duration period of 12 months had to be paid in order to allow for the time to apply for and obtain the shop licence. After failing to secure the shop licence, the plaintiff was informed that the lease would not be renewed at its expiration. The lease agreement having expired and not having been renewed, no rent is due to the plaintiff and as such the claim should be dismissed.</p> <p>The defendant filed a counter claim for payment of the sum of US$8 451 paid to the plaintiff as a refundable  good tenancy deposit equivalent to two months rent which money was to be expended on rectifying any damage, effecting repairs, renovations and restoring the premises to their original condition. As the defendant never really took occupation it is entitled to the refund of the deposit. To the counterclaim the plaintiff retorted that it was a term of the agreement that he would be allowed to set off the good tenancy deposit against any outstanding rentals. Given that the defendant is in rent arrears, the deposit has been used to set off part of the arrears and the defendant is not entitled to anything.</p> <p>The plaintiff further pleaded that the defendant did not surrender the keys to the premises and for that reason it is regarded as still being in occupation of the premises. Rent continues to accrue as a result. At the pre-trial conference held by the parties before a judge the defendant admitted that it did not give any written notice in terms of the lease agreement and the parties agreed to refer the following issues to trial.</p> <p>1.         Whether the defendant owes the plaintiff the sum of $32 000 in arrear rent.</p> <p>2.         Whether the defendant is entitled to a refund of the deposit of $8 451.</p> <p>It was the plaintiff’s evidence that after the parties signed the lease agreement produced in court, he immediately demanded rent in advance for the duration of the period of lease. He stated that the parties specifically agreed that the defendant would make annual rent payments. He was however paid the first payment in kind, that is in the form of a motor vehicle. In that regard he produced a copy of an agreement dated 30 January 2017 for the sale of a Toyota Land cruiser motor vehicle sold to him at a price of $87 000. He also produced a schedule of payment for that date showing that of the purchase price of $87 000, $48 000 was appropriated as rent for the premises in terms of the lease agreement.</p> <p>That would mean that the rent was indeed $4 000 per month. The schedule in question which was signed by himself and Bruce Taruvinga representing the defendant shows that the plaintiff was required to pay to the defendant a sum of  $27 000 in cash and a further $12 000 by electronic transfer bringing the total to $87 000. The witness stated that the lease agreement did not terminate by effluxion of time even though it was for a fixed term. According to him, in terms of clause 2.2 of the lease agreement, the defendant was required, at least 3 calendar months before the last day of the lease period, to advise him in writing of his intention not to renew the lease. If the defendant did not do so, then the lease would continue to subsist in terms of clause 2.3. A converse application of procedure, as it were.</p> <p>According to the plaintiff, the defendant did not give written notice of termination of the lease and as such clause 2.3 kicked in meaning that the lease continued and the defendant is liable to pay rent for the period from March to November 2018 when he issued summons. The rent for that period of 9 months is $36 000. He applied the good tenancy deposit of  $4000 (not $8 451 as claimed by the defendant) to the arrear rent leaving the balance of $32 000 being claimed. The plaintiff made an admission that he received a sum of $4 000 from the defendant as good tenancy deposit and disputed that what was paid was $8 451 as claimed by the defendant.</p> <p>He went on to say that when he issued summons against the defendant on 29 November 2018 he did not seek an eviction order or the return of the keys even though the defendant still had the keys and was in occupation because all he wanted were rent arrears. The lease continued thereafter until 25 January 2019 when his legal practitioners wrote a letter to the defendant which was delivered at the address of its legal practitioners, cancelling the lease agreement and demanding the return of the keys.</p> <p>When later asked to explain why he did not demand the return of the keys and eviction in the summons, the plaintiff said he is in fact claiming the return of the keys but did not explain why eviction was not sought against a defaulting tenant. His evidence is to the effect that the defendant is no longer in occupation of the premises and all he wants now is the return of the keys. He does not know when the defendant vacated but knows that he has vacated but kept the keys. He did not explain why holding over damages were not sought against the defendant if it only vacated after the termination letter of 25 January 2019. The entire evidence of the plaintiff does not make sense and appears couched in a way to take advantage of the provisions of clause 2.2 and 2.3 of the expired lease agreement while ignoring the situation on the ground which situation chimes neatly with the defendant’s version.</p> <p>According to Bruce Nhamo Taruvenga, a director of the defendant company the underlying intention of the parties was that the premises in question would be customized and utilized solely as a betting shop. That is consistent with clause 1.4 of the agreement which reads:</p> <p> </p> <p>            “1.4 the ‘authorised use’ of the premises is for Betting Shop and Offices.”</p> <p>            It was therefore under stood and appreciated by the parties that the defendant would have to apply for a licence to operate a betting shop. It is for that reason that rent was paid in advance for a full year to allow for the licence to be obtained. As  a result, the defendant never took occupation as it awaited the grant of a licence. Of course after signing the lease the defendant’s representatives were referred to the plaintiff’s nephew by the name of Binali who is the plaintiff’s point man at the premises. This is so because Binali operated an ecocash tuck shop at the premises.</p> <p>            It is Binali who gave the defendant the keys to the premises (not the plaintiff as he claimed) and it is Binali who showed them around. Even before the expiry of the lease, the plaintiff was made aware of the defendant’s inability to obtain the licence and that the lease would not be renewed for that reason. As the defendant had obtained the keys from the point man, Binali, it surrendered them to him even though the written lease would have required that the defendant deals directly with the plaintiff.</p> <p>            Taruvinga testified that at the commencement of the lease period the defendant had paid $8451 to the plaintiff as two months good tenancy deposit. This was done in terms of clause 5.1 of the lease agreement. The witness was asked as to why such an odd amount was paid given that the monthly rental was $4 000-00, 2 months rent $8 000-00 and clause 1.6 defined the good tenancy deposit as:</p> <p> </p> <p>            “1.6. the deposit is US$4 000-00 equivalent to one month’s rent.”</p> <p> </p> <p>            His explanation was that the money was paid in kind in the form of a motor vehicle resulting in the defendant making an over payment of $451-00. That part of Taruvinga’s evidence is unreliable and does not make sense either especially as he admitted signing both the agreement for the sale of the motor vehicle and the schedule of payment produced by the plaintiff. The schedule does not show any over payment of $451-00.</p> <p>            I shall now proceed to relate to the provisions of the lease agreement which ground the respective claims of the parties. Clause 2 reads:</p> <p>            “2. LEASE</p> <p>            2.1 The Lessor lets to the Lessee who hires the premises for the lease period.</p> <p>            2.2. At least three months prior to the last day of the lease period the Lessee shall advise the         Lessor in writing whether-</p> <p>            2.2.1 The Lessee intends to vacate on the termination date in which event a written agreement      of renewal shall be entered into by the Lessor and Lessee on such terms as may be agreed.</p> <p>            2.3. If the Lessee fails to give notice as provided in clause 2.2. hereof the Lease will continue       from the termination date of the lease or option period on the same terms and conditions other       than the rent payable but subject to two months’ written notice of termination on either side          being given.”</p> <p> </p> <p>            Those are the provisions relied upon by the plaintiff in marking an audacious claim for 9 months rentals after the expiry date. For its part, the defendant relies on Clause 5:1 in making the counter-claim. It provides;</p> <p>            “5. DEPOSIT</p> <p>5.1. The Lessee undertakes to deposit two months’ rent with the lessor which deposit may be used at the termination of the Lease or at anytime at their discretion to rectify, repair, renovate          and restore the condition of the leased premises or any of its fixtures, fittings, locks, keys and fastenings which may be found to be deficient or missing due to the negligence of the Lessee, the balance or the whole amount of which may be set off against any rental that may be due    and owing by the Lessee. The Lessee shall, at all times, maintain a deposit amounting to two months’ rent and any additional charges as determined by this lease and any extension             thereof. In the event of all or part of the deposit being expended as aforementioned during the             currency of this lease or any extension thereof, the Lessee hereby undertakes to remit to the             Lessor to make up the deposit to the full amount as herein provided.”</p> <p> </p> <p>            Mr <em>Mavhiringidze</em> for that plaintiff submitted that the written lease agreement regulates the conduct of the parties and as such their relationship, rights and obligations must be restricted to the four corners of the written agreement. He relied on the parol evidence rule to make the point that no extrinsic evidence may be brought into the picture outside the written agreement. Mr <em>Kawonde</em> for the defendant submitted that the plaintiff’s approach is a forensic, if not impirical one, which ignores completely not only the reality on the ground but also the conduct of the parties which are consistent with the termination of the agreement by effluxion of time even though no written notice was given in terms of clause 2.2 of the written agreement.</p> <p>            Mr <em>Mavhiringidze</em>’s simplistic approach to what is in essence a very complex issue is of course informed by the principle that when a contract has been reduced to writing, the writing becomes the exclusive memorial of the transaction and as such the parties are precluded from resorting to extrinsic evidence to contradict its contents; See <em>Union Government</em> v <em>Vianini Ferro-Concrete Pipes (Pty) Ltd</em> 1941 AD 43 at 47 (quoted with approval in <em>Nhunda</em> v <em>Chiota &amp; Anor</em> S-28-07; <em>Johnston</em> v <em>Leal</em> 1980 (3) SA 927 (A) at 943.</p> <p>            In my view that would be exclusively applied in cases where the matter turns solely on the interpretation of the provisions of the contract where one party insists that a provision in the contract should be applied while the other attempts to introduce another agreement not integrated in the complete written memorial of the parties’ written agreement. The situation is slightly different in the present matter in that the defendant does not seek to import extrinsic evidence <em>per</em> <em>se</em>. All that the defendant is saying is that the lease agreement terminated because it was never consummated as a result of a supervening impossibility, the failure to obtain an operating licence, and yet the purpose for which the premises were leased was to operate a betting shop.</p> <p>            The plaintiff’s case hinges on fictional occupation in the form of keys to the premises which he says were never surrendered to him. The matter then turns on the issue of the keys, which has to be decided on the credibility of witnesses as well as consideration of the parties’ conduct, it being critical to have regard to the conduct of the parties where there is an ambiguity, in interpreting their rights. In making that point in <em>National Railways of Zimbabwe Contributory Pension Fund</em> v <em>National Railways of Zimbabwe</em> 1984 (1) ZLR 322 (H) at 327 A-B Korsah J (as he then was) quoted with approval the remarks  of fagan CJ in <em>Consolidated Diamond Mines of South West Africa Ltd</em> v <em>Administrator of South West Africa &amp; Anor</em> 1958 (4) SA 571 AD at 632 that:</p> <p>            “The subsequent conduct of the parties to an agreement may afford evidence of a common           interpretation of an ambiguous document by both parties to it…and the court would, on            satisfactory evidence of such common interpretation by the parties concerned, hold them to       it.”</p> <p> </p> <p>            See also <em>Cone Textiles</em> v <em>TTL Development Corporation</em> 1979 RLR 114 at 120.</p> <p>            In my view the application of the foregoing legal principles goes a long way in showing how the parties related to clauses 2.2 and 2.3 as well as clause 5.1 of the agreement. According to the plaintiff the lease continued because the defendant did not submit a written notice of its non-renewal 3 months before its expiration and did not surrender the keys thereby giving the defendant fictional occupation until he formally terminated the lease by letter written on 25 January 2019 delivered at Kawonde &amp; Partners in Harare.  Delivery of that letter in Harare disregarded clause 13 of the agreement which required all notices to be served on the Lessee at the leased premises. Clearly the parties were in the habit of ignoring the provisions of the agreement because the defendant also says that he surrendered the keys to Binali at the end of the lease without giving written notice. According to him the parties communicated verbally. </p> <p>            I have said the issue of the surrender of keys is paramount in determining where the truth lies. This is because if indeed the defendant surrendered the keys to Binali in February 2018, there would be no entitlement to rent because fictional occupation falls away. The versions of the parties are mutually destructive and as such the matter turns on the credibility of witnesses. In <em>Nicoz Diamond Insurance Ltd </em>v <em>Clovgate Elevator Company (Pvt) Ltd</em> HH 76-18, Hungwe J dealt with the assessment of the credibility of witness. The following passage is apposite:</p> <p>“In assessing the credibility of witnesses the court generally is guided by several factors. A range of factors must be taken into account in assessing a witness’s credibility. In <em>Hees </em>v <em>Nel</em> 1994 PHF 11 Mahomed J, had this to say on the subject of assessment of credibility:</p> <p> </p> <p>‘Included in the factors which a court would look at in examining the credibility or veracity of any witnesses, are matters such as the general quality of the evidence of the conflicting witness. His consistency both within the context and structure of his own evidence and with the objective facts, his integrity, his candor, his age, his capacitates and opportunities to be able to depose to the events he claims to have knowledge of. His personal interest in the outcome of the litigation, his temperament and personality, his intellect, his objectivity, his ability to effectively communicate what he intends to say and the weight to be attached and the relevance of his  version against the background of the pleadings.’”</p> <p> </p> <p>            Considering all the factors set out in the above passage, the plaintiff does not fare well at all. I shall demonstrate. Although he claimed that he is the one who handed over the keys to the defendant’s  representative and dealt directly with him even when he was claiming arrear rent, he was ambivalent as to what was happening at the premises. He appeared cagey about admitting that the premises were never occupied even though he insisted that he passed through the premises regularly. One would expect that as a person who passed through there regularly not only would he inspect the premises to assess its condition and how it was being used, but he would be forthright as to whether the place was occupied or not.</p> <p>            As a person who was such a stickler to the terms of the agreement one would expect him to inspect the premises and enforce the provisions of clause 5.1 of the agreement if there was any damage arising out of use of the premises. He could not claim that the defendant physically occupied the premises without inspecting the premises for a person who was determined to forfeit the good tenancy deposit. By the same token, the plaintiff would have been expected to enforce clause 11 of the agreement relating to breach by non-payment of rent “or any portion” of it on due date. It allowed him “forthwith to cancel the lease and re-enter” the premises.</p> <p>            We know that for almost a year after the lease expired, the plaintiff did not cancel the lease agreement, neither did he seek to re-enter the premises. In fact even when he issued summons in November 2018, cancellation of the lease and eviction were not claimed. He only sought payment of what he regarded as arrear rent. A person who presented himself as a strict adherent of the terms of the lease he did not deliver his letter of cancellation in terms of the agreement at the leased premises but somewhere in Harare. Of course he could not do so because he knew the defendant was not in occupation all the time.</p> <p>            It is for that reason that even when he demanded the return of the keys as a window dressor, he never pursued that demand and never incorporated their return to him as part of his claim. In fact when asked if the defendant was still in occupation, the plaintiff stated the defendant was not. As to how this was so, he could only say because he wrote a letter of cancellation while at the same time claiming the defendant still has the keys. This does not make sense because if the defendant still has the keys and the plaintiff has been denied access to the premises, the fictional occupation he relied on to claim arrear rent of 9 months would still apply to this day. Yet there is no claim for holdover damages.</p> <p>            I have no hesitation in rejecting the plaintiff’s version as it is clearly inconsistent, contradictory and contrived. There is no doubt that this lease was never consummated and as such the matter is <em>sui generis</em>. When it expired the parties agreed it would not be renewed because the underlying reason for its existence had failed to eventuate. The provisions of clause 2.3 for the extension of its tenure did not kick in because there was nothing to extend. The defendant was not in occupation and the plaintiff contrived the issue of keys in order to find something to stand on. As a result he was an unreliable witness whose credibility flew away when one had regard to his incredible version.</p> <p>            It occurs to me that the plaintiff came up with a fabricated claim, which is inconsistent with the conduct of the parties, for the sole reason to justify retention of the deposit paid. Speaking of the deposit, the defendant also failed to prove an entitlement to $8 451-00 as refund and appears to have tried to take advantage of the wording of clause 5:1 providing for a 2 months’ rent deposit to claim an amount not due. I tend to agree with Mr <em>Mavhiringidze</em> that clause 1.6 providing for a deposit of $4 000-00 overrides clause 5.1 because it is in the definition section of the agreement. Even if it was not, the defendant would still not be entitled to the amount claimed because it did not prove that $8 451-00 was paid. </p> <p>            The defendant’s saving grace is the admission made by the plaintiff that he received $4000-00 as deposit. In terms of s 36 of the Civil Evidence Act [<em>Chapter 8:01</em>]:</p> <p>“(1)      An admission as to any fact in issue in civil proceedings, made by or on behalf of a party to those proceedings, shall be admissible in evidence as proof of that fact, whether the admission was made orally or in writing or otherwise.   </p> <p>(2)        …..</p> <p>(3)        It shall not be necessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings.”</p> <p> </p> <p>The plaintiff is liable to refund the $4000-00 admitted as having been paid as deposit</p> <p>because he failed to lay any legal foundation for its forfeiture.</p> <p>            In the result, it is ordered that:</p> <ol> <li>The plaintiff’s claim is hereby dismissed.</li> <li>The defendant’s counter-claim is hereby granted in the sum of US$4000-00 together with interest at the prescribed rate of 5% per annum from 18 December 2018 to date of payment in full.</li> <li>The plaintiff shall bear the costs of suit.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Mavhiringidze and Mashanyare</em>, plaintiff’s legal practitioners</p> <p><em>Kawonde Legal Services</em>, 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/2019/454/2019-zwhhc-454.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27661">2019-zwhhc-454.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/2019/454/2019-zwhhc-454.pdf" type="application/pdf; length=144867">2019-zwhhc-454.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/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liability-breach-contract">liability for breach of contract</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes">What constitutes</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/parol-evidence-rule">parol evidence rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-parol-evidence-may-be-led">when parol evidence may be led</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/2018/76">NICOZ Diamond Insurance Ltd. v Clovgate Elevator Co. (Pvt) Ltd. AND Clovgate Elevator Co. (Pvt) Ltd. v NICOZ Diamond Insurance Ltd (HH-76-18, HC 7126/17 HC 800/17) [2018] ZWHHC 76 (07 February 2018);</a></div></div></div> Tue, 16 Jul 2019 13:00:03 +0000 admin 9352 at https://old.zimlii.org