Judgment No. SC 45/04

Civil Appeal No. 425/02

NTABENI CONSERVANCY v

(1) E D KAZOMBE (2) THE GOLDEN EAGLE INVESTMENTS (PRIVATE) LIMITED (3) WILDLIFE MANAGEMENT SERVICES INTERNATIONAL (PRIVATE) LIMITED

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, MALABA JA & GWAUNZA JA

HARARE, JUNE 29 & SEPTEMBER 7, 2004

J B Colegrave, for the appellant

E T Matinenga, for the respondents

ZIYAMBI JA: This is an appeal from a judgment of the High Court discharging a provisional order issued by that court on 25 March 2002. The provisional order was expressed in the following terms:

‘TERMS OF ORDER MADE’

“That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1. That the agreement entered into between the Applicant and the 1st and 2nd respondents on the 15th January 2001 is hereby cancelled.

2. That the Applicant or its authorized agent is entitled to the possession of all its Sable Antelope at 3^rd Respondent’s premises in Norton and (to) move them to such facility as it, in its absolute discretion, deems fit.

3. That the 1st and 2nd Respondents, jointly and severally, the one paying the other to be absolved, pay the Applicant’s costs.

INTERIM RELIEF GRANTED

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

1. The 1st and 2nd Respondents are hereby directed not to issue any instructions to the 3rd respondent, or any other party, for the movement of any of the Sable Antelope held by 3^rd Respondent.

2. The 1^st, 2^nd and 3^rd Respondents are hereby restrained from selling, moving or otherwise dealing with the Sable Antelope held by 3rd Respondent.”

The relevant facts as they appear from the record are as follows:

The appellant is a universitas, being an association of landowners in the Chinhoyi district. The first respondent is the Chairman of the Tourism and Wildlife Advisory Council which carries on business from 30 Golden Stairs Road from which address the first respondent also carries on business on his own account through the second respondent of which he is a director.

In December 2000, the members of the appellant decided to capture and sell some of the sable antelope and other animals on the conservancy. The members mandated their chairman, Mr Rory Martin Hensman (‘Hensman’) to arrange for the capture and sale of sable antelope, livingstone eland, tsessebe, bushbuck and reedbuck ‘at sustainable offtake levels’. Thereafter, Hensman approached one Marthinus Willem de Jager (‘de Jager’) a South African citizen and resident who agreed to purchase each sable for a purchase consideration of Z$ 400 000.00. Hensman then negotiated with Kazombe to whom he was referred as being ‘a reliable person’ and one who was able to obtain the necessary permits. He concluded a verbal agreement with Kazombe in terms of which Kazombe was to receive a 10% commission on the sale of each animal. This would equate to Z$4 000 000.00 for every 100 sable antelope sold. In return, Kazombe was to arrange for the relevant capture and movement permits (‘the permits’).

In January 2001 Kazombe advised Hensman that he was having difficulty in obtaining the permits. He advised that if Hensman signed the agreement attached to the papers as Annexure ‘B’, he would be able to negotiate with the Department of National Parks and Wild Life Management and obtain the permits. He suggested a figure of Z$55 000 per animal. According to Hensman, it was never intended that Annexure ‘B’ would be acted upon by the parties as it was concluded solely to facilitate the acquisition of the permits for the capture and movement of the animals.

In January 2002, Kazombe advised that he had obtained the permits and had requested the third respondent represented by one Howard Hunter (Hunter) to proceed with the sale and capture of the antelope. So it came about that between 28 January 2002 and 11 February 2002, the appellant permitted the capture of 137 sable antelope. Hensman arranged for the veterinary movement permits in respect of the animals and they were translocated to the 3^rd respondent’s premises at Somerby Bomas, Saffron Walden Road, Norton, where they have since been kept in quarantine.

On 5 March 2002, Hunter telephoned Hensman to say that he had been instructed by Kazombe to make the sable antelope ready for immediate transportation to South Africa. In answer to a query by Hensman, he responded that Kazombe had claimed that the sable antelope were his to do with as he pleased.

Hunter therefore, upon the instructions from Kazombe, commenced the process known as ‘bleeding’. By this process the sable antelope are darted, blood samples are taken and the animals are then resuscitated. The blood samples are then sent to South Africa for testing. This is to ensure that the animals are free from diseases such as foot and mouth.

Meanwhile, the sable antelope are in the care of the appellant who continues to supply food for them. There is some dispute as to whether the animals are showing signs of stress from being kept in a confined space.

It was on the above facts that the High Court, on 25 March, 2002 granted the provisional order set out above.

The respondents contended before the court a quo:

(a) that the agreement Annexure B was the only agreement between the parties;

(b) that there was no verbal agreement as deposed to by Hensman; and

(c) that the issue of the permits was a condition precedent of the agreement of sale which condition was fulfilled when Kazombe obtained the permits.

Accordingly, so it was argued, the animals belonged to Kazombe and he had seventy (70) days from the date of delivery to pay for them which seventy (70) days had not elapsed at the time he deposed to the opposing affidavit. As to the feeding of the animals, the appellant of his own accord had offered to feed them as there was a ready supply of feed available to the appellant. These submissions found favour with the court a quo.

Annexed to the respondents’ opposing affidavit and without any explanation for its inclusion in the opposing papers, was a letter the contents of which are as follows:

P O Box 17

ELLISRAS

O555

To Whom It May Concern

My agreement concerning the Sable with the Conservancy is as follows: I pay the Conservancy R24000,00 per Sable Groce. All the costs in Zimbabwe on the Zimbabwean side would come from this amount. All the costs on the South African side would be carried by myself.

I hope that you would find that in order.

M W De Jager

2002-04-12

According to Hensman, the minimum price of $400 000.00 is based on the then Z$: SAR “blend exchange rate” of 16:1 which was quoted to him by the appellant’s bank.

The gravamen of this appeal is that the learned judge in the court a quo erred in finding that the written agreement was not a sham and was therefore binding on the parties.

At the hearing before us, Mr Colegrave, who appeared for the appellant, applied for an amendment to the provisional order sought and obtained by the appellant on 25 March 2002 in paragraph 1 to read;

“the agreement entered into between the applicant and the first and second respondents on 15 January 2001 is declared to be of no force or effect.”

A ruling was deferred to await the decision of this Court on the outcome of the appeal.

I turn now to consider the merits of the appeal.

The letter from de Jager set out above confirms that the appellant had agreed to sell him sable antelope at a price of ZAR 24 000. The appellant confirms this and says that the price in Rand equated at the time to Z$400 000.00. Although no explanation is given by the respondents for the attachment of the letter to their opposing affidavit, it does assist the appellant in that it gives an indication as to the price at which the appellant was prepared to sell the sable antelope in December 2000. The question immediately arises as to why on 15 January 2001, less than a month later, the appellant would then agree to sell the same animals at Z$55 000.00. It seems to me that the explanation lies in the averment by the appellant that this agreement was never intended to be binding but was meant to be an expedient designed to assist Kazombe in obtaining the permits. The learned judge in the court a quo did not deal fully with that aspect of the matter. At page 53 of the record she said:

“It is significant in my view to note that the letter is dated 12 April 2002 which would suggest that it was written after this application was lodged in order to confirm that the writer thereof was willing to buy animals from the applicant.”

What the learned judge missed was that that letter confirmed the appellant’s averment that he intended to sell the sable antelope to de Jager for $400 000.00 which was the equivalent of the ZAR 24000 quoted in the letter. With a sale figure of $400 000 in mind, it would appear odd, to say the very least, that the appellant would then agree to sell the sable antelope at the grossly reduced price of Z$55 000.00.

It was submitted by Mr Colegrave that the probabilities favour the appellant’s version of the facts. I agree with that submission. All that the parties did is consistent with the agency agreement averred by the appellant.

It can equally be said that all that Kazombe has been shown to have done was in furtherance of his position as an agent of the appellant. Thus Kazombe, having been assured that he would earn a 10% commission on each animal sold, would have arranged for the capture of as many sable antelope as possible. That would explain why the number of animals or their description is not contained in the agreement. Indeed, Kazombe did not deny, in his opposing affidavit, the appellant’s averment that he (Kazombe) asked Hensman to sign the agreement in order to facilitate the acquisition of the permits and suggested the price of $55 000. Having obtained the permits, Kazombe arranged for the capture of the animals and the appellant allowed it and continued to feed and care for the animals while in captivity.

The court a quo was attracted by the agreement and found that its detailed nature lent support to the respondents’ case. However, as submitted by Mr Colegrave, the agreement has the appearance of being a pro forma agreement which was used before in some other connection. It does not have the appearance of having been drawn up to meet the requirements of this particular case. Thus, in terms of clause 4 of the agreement, delivery was to be effected by pointing out the animals to the purchaser by the seller. Firstly there is no evidence that this was done and secondly, in a conservancy of 25 farms described by the court a quo as ‘vast’, it seems to me that pointing out sable roaming among other animals in such a vast area could prove to be no mean task.

Clause 6 relates to documents of identification and pedigree which were to be furnished to the purchaser by the seller. Again as pointed out by the appellant, this does not seem applicable in the sale of sable antelope. In any event, the respondent did not enlighten the court as to whether the question of pedigree was relevant with reference to the sale of the sable antelope.

In terms of Clause 2, the property sold was the wildlife described in the ‘schedule hereto’. No schedule was attached. It is trite that the merchandise must be clearly identified in the contract of sale. The respondents’ contention that -

“it was the common intention of the parties that I would buy and take delivery of the 137 animals which have already been delivered to me and are in my possession”,

misses the point that the merchandise must be identifiable at the time of the conclusion of the agreement. At the time of the signature of the agreement, no reasonable person reading the agreement would have been able to say what animals were being referred to in the agreement. The failure to identify the merchandise in the agreement was fatal thereto and rendered the agreement void. See The Principles of South African Law by Wille 8^th edition at p 529.

In my view the balance of probabilities favoured the appellant and the provisional order ought to have been confirmed.

Accordingly the appeal is upheld with costs. The order of the court a quo is set aside and substituted as follows:

The provisional order is confirmed save that paragraph 1 of the final order is amended to read as follows:

“That the agreement entered into between the applicant and the first and second respondents on 15 January 2001 is hereby declared to be of no force or effect.”

MALABA JA: I agree.

GWAUNZA JA: I agree.

Stumbles & Rowe, appellant’s legal practitioners

Kantor & Immerman, respondents’ legal practitioners