Judgment record
Jabulani Chasokela and Tendekayi Mudzimu v Institute of Chartered Accountants of Zimbabwe
HH 82/2012HH 82/20122012
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JABULANI CHASOKELA
and
TENDEKAYI MUDZIMU
versus
INSTITUTE OF CHARTERED ACCOUNTANTS OF ZIMBABWE
HIGH COURT OF ZIMBABWE
DUBE J
HARARE, 26 January 2012
Opposed Court Application
C.Mucheche, for the applicant
M. Nyamasoka, for the respondent
DUBE J: Both the applicants are former employees of the respondent. Their applications
were consolidated with the consent of both parties in terms of Order 13R92 of the High Court
Rules, 1979. The two applications were lodged separately and counsel requested the court to
consolidate the matters. In considering whether or not a consolidation was warranted the court had
Their applications were consolidated with the consent of both parties in terms of Order 13 R92 of
the High Court Rules, 1979 regard to the fact that the cause of action arose from the same facts
and the issues raised in both application are the same. The respondent is the same and the legal
practitioners representing both respondent and the applicants are the same. It was therefore fitting
and convenient for all concerned to consolidate the two matters into one.
On 12 February 2010 the respondent’s Chief Executive Officer made written offers to
applicants for the purchase of their respective vehicles, being a Mazda B2500 vehicle each. The
applicants accepted the offers.The terms of the written contracts provided that respondent would
deduct a specified sum of money per month towards the purchase of the vehicles. The applicants
had the option to make outright purchases of the motor vehicles after a period of one year from the
date of first instalment. Respondent deducted one instalment each by direct debit from the
applicants’ salaries for the month of March 2010. No further deductions were effected thereafter.
More than a year later and after the applicants had left the respondent’s employment, the applicants
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tried to invoke the option provided in the contract to pay the outstanding balance of the purchase
price and acquire ownership of the said motor vehicles. The respondent refused to accede to their
request on the basis that the terms of contract of sale were contrary to the motor vehicle policy and
that respondent had reversed the transactions.
The applicants contend that the contract was never reversed and that they never consented
to cancellation of the contract. The applicants also took issue with the fact that the respondent
failed to attach proof of such consent and the fact that the motor vehicle policy document was
never produced. The respondent Secondly respondent accepted that its chief executive officer at
the time had authority to bind the respondent, acknowledges that the parties entered into valid
agreements which constituted binding contracts. Secondly respondent accepted that its chief
executive officer at the time had authority to bind the respondent. The respondents however aver
that the agreements of sale were later cancelled with the consent of both parties. That the chief
executive officer did not adhere to the requirements of the motor vehicle policy of the respondent
and that he went on a frolic of his own and therefore breached the terms of the policy. Respondent
states that this is the reason why the contracts were cancelled.
The respondent further avers that the appellants were advised of this development and that
this explains why the instalments were stopped. The respondents maintain that the contract was
cancelled with the consent of both parties.
In this application, applicants pray for an order compelling the respondent to accept the outstanding
balances and to effect change of ownership of the vehicles into their names
Respondents submitted that the issue whether or not the contract was subsequently
cancelled raises a material dispute of fact. The respondent stated that the applicants made a wrong
decision by proceeding by way of action when they were aware of the existence of a material
dispute of fact.The respondents further contended that the court cannot resolve the matter on the
basis of the papers before it and that it should dismiss the application.The applicants did not allude
to the dispute in their founding affidavit and averred that the fact that the contract was cancelled
was never communicated to the applicants.
There are two issues requiring to be resolved, the first is whether or not there is a material
dispute of fact that cannot be resolved on the papers and secondly whether or not the contracts
were cancelled with the consent of applicants. The approach the courts should take to factual
disputes was outlined in Tamarillo (Pvt) Ltd v B.N. Aitken (Pvt) LTD 1982 9(1)SA 398, where
CORBETT J said the following, “A litigant is entitled to seek relief by way of notice of
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motion. If he has reason to believe that facts essential to the success of his claim will probably be
disputed he chooses that procedure at his peril, for the court in the exercise of its discretion might
decide neither to refer the matter for trial nor to direct that oral evidence on the disputed facts be
placed before it, but to dismiss the application. But if, notwithstanding that there are facts in
dispute on the papers before it, the court is satisfied that on the facts stated by respondent,together
with the admitted facts in the applicant’s affidavits,the applicant is entitled to the relief,it will make
an order giving effect to such finding,with an appropriate order as to costs”.
The approach of the courts has always been that in motion proceedings court must not
hesitate to decide an issue of fact on an affidavit merely because it may be difficult to do so. The
court should endeavour to resolve the dispute without the hearing of evidence if it is satisfied that
this can be done without doing an injustice to either party see Jose and as v Shah 1972 (1) RLR
137: Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 There may, of course, be
argument about whether there is in reality a dispute of fact and if so if it is material.” LORD
DIPLOCKS in CCSU V Minister of the Civil Service 951
“It has always been the view of the courts that they can only entertain proceedings on
motion (i.e. on the papers) where there is no genuine dispute of fact. See Herbstein &Van
Winsen, The Civil Practice of the Superior Courts of South Africa third ED at the foot of
p61 where the learned authors state that,” Courts will only order that a matter brought by
way of motion proceedings be dealt with by way of trial proceeding or be dismissed if there
is a real dispute of fact between the parties”. See Bercorp (Pvt) Ltd Nyoni 1992 (1) ZLR
352.
In Plascon-Evans Ltd v Van Riebeck Paints (Pvt) Ltd 1984(3) SA 277, CORBETT J set out
what are today referred to as the Plascon rules and remarked on the existence or otherwise of a
dispute of fact as follows:
“In certain instancesthe denial by respondent of a fact alleged by the applicant may not be
such as to raise a real, genuine or bona fide dispute of fact….and the court is satisfied as to
the inherent credibility of the applicant’s factual averment, it may proceed on the basis of
the correctness thereof and include this fact among those upon which it determines whether
the applicant is entitled to the final relief which he seeks.”
The test to determine whether or not there is a material dispute of fact capable of resolution
on the papers is an objective one.The onus rests on the party seeking to have the dispute of fact
resolved to show that such dispute exists. The approach the courts must adopt was aptly stated
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inZimbabwe Bonded Fibre Glass (Pvt) Ltd v Peech 1987 (2) ZLR 338 where the court stated that
in motion proceedings, the court should endeavour to resolve dispute of fact a 150 (ED) at 154,
PRICE JP adapting the words of MURRAY AJA in Room Hire Company (Pvt) Limited Jeppe
Mansions (Pvt) Ltd 1949 (3) SA 1155 said the following:
“A bare denial of applicant’s material averments cannot be regarded as sufficient to defeat
applicant’s right to secure relief by motion proceedings in appropriate cases. Enough must
be stated by respondent to enable the court to conduce a preliminary investigation ....... and
to ascertain whether the denials are not fictitious, intended merely to delay the hearing (or
for some other purpose.) The respondent’s affidavits must at least disclose that there are
material issues in which there is a bona fide dispute of fact capable of being decided only
after viva voce evidence has been heard, see also Prisloo v Shaw 1938 AD 570. It is
necessary to make a robust common sense approach to a dispute on motion as otherwise the
effective functioning of the court can be hamstrung and circumvented by the most simple
and blatant stratagem.” See also Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1982(2)
ZLR 338.(S)”
The respondent avers that there is a material dispute of fact that emerges from the papers
which cannot be resolved without calling oral evidence and urged the court to dismiss the
application. Applicants submitted to the contrary and that no genuine dispute of fact exists on the
papers and urged the court to adopt a robust approach and decide the application on the papers.
The approach that I am going to adopt is one proposed in South Coast Furnishers CC v
Secprop 30 Investments (PTY) Ltd (ar319/2011)_(2012) ZAKZPHC 8, a Kwazulu-Natal High
Court judgment, where GORVEN J said the following of the approach the court should adopt,
“I conceive that the test to be applied as to whether a genuine dispute has been raised on the
papers is similar in nature to that in a trial at the point where the plaintiff’s case has been
closed and absolution is sought before the defence is embarked upon. Here the test is
whether there is evidence upon which a reasonable presiding officer might or couldfind for
the plaintiff. If there is, absolution should be refused. The court does not enter into an
evaluation of the credibility of witnesses unless they have ’palpably broken down, and
where it is clear that they stated what is not true’. Similarly, in motion proceedings, a robust
approach can only be taken, and the matter decided on the probabilities, if that clear falsity
emerges from the papers.”
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The court will now test the correctness of the alleged facts. Turning to the specific
avermentsof the respondent, concerning the dispute, deponent Mr Kunaka states in paragraph 4 of
his affidavit as follows:
“Soon after the respondent’s erstwhile Chief Executive entered into this agreement with the
employees,the presidium of the respondent was involved and after noticing that the terms
and conditions thereof were in fact contrary to themotor vehicle policy which was existing
at the timereversed thetransaction.All the employees who were involved were actually
advised and so wasthe respondent’s erstwhile chief executive officer. In fact, this is the
reason why the applicant talks of the first monthly instalment. The first instalment was only
paid in March before the transaction was reversed. No further instalments were ever paid
simply because the transaction was reversed with the consent of the Applicant”
After this paragraph, respondent further substantiates what is contained in paragraph 4.
Respondent acknowledge sin its affidavit that there was a valid agreement but however asserts that
the agreement was subsequently cancelled with the consent of both applicants. The respondent has
not in his opposing affidavit “seriously and unambiguously addressed the fact said to be disputed”,
See Wightman t/a J W Construction v Headflour (Pvt) Ltd 2008 (3) SA 371 for that
proposition.There is no indicationin the opposing affidavitof the identity of the person who
cancelled the contract albeit verbally. The court was unable to establish the identity of the person
who communicated the cancellation to appellants if any. If respondents were serious about their
defence this information would have been clearly contained in their affidavits. The deponent of the
opposing affidavit should have given details of the averment and outlined details of the
cancellation. All that the current chief executive officer, a Mr Kunaka states in his opposing
affidavit, is that all employees were advised that the transaction was reversedandthat this is
corroborated by the fact that no further monthly instalments were deducted. He failed to establish a
basis for the averment thatthe contracts were verbally cancelled and with consent of the
applicants.The person who supposedly verbally cancelled the contract should have filed a
supporting affidavit to that effect and outlining how and when the contracts were cancelled.
There is nothing on the papers to suggest that the contract was either verbally cancelled or
to show how consent of the applicants was supposedly acquired. Respondent’s counsel suggested
from the bar that it could either be the president or vice president of the respondent who cancelled
the contract verbally. He was also unable to say when the contracts were verbally cancelled. He
had no instructions on who in fact had cancelled the contracts.
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The respondent has not given detailed reasons for the cancellation of the contract except to
indicate that the contract was contrary to the motor vehicle policy of the respondent. It was not
clear whether or not the policy document does indeed exist. Its terms are not known. Respondent’s
counsel failed to explain why this policy document was not attached to its opposition papers.The
failure to attach the car policy document further reveals the respondent’s version as raised on the
papers to be fictitious fanciful and untenable and the court is justified in rejecting it on the papers.
There is no existence of a genuine dispute of fact. The respondent has failed to lay a foundation or
substantiate its claims that the contract was verbally cancelled and the reasons thereof. The court is
not convinced that this claim is not fictitious.In order for a dispute to suffice as a real dispute of
fact, it must arise from the papers, must be fully supported and not spring from the bar.There is
simply no support for the averment that the contract was verbally cancelled. It remains a bald and
fictitious averment. No genuine dispute of fact has been established on the papers and the court is
justified in rejecting it.As put in National Director of Public Prosecutions v Zuma 2009 (2) SA 277
per HAMS DP, where a” version consists of bald or uncredit worthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or....clearly untenable, ” the court is justified
in rejecting it on the papers. The dispute raised is not such as to be incapable of resolution on the
papers. The claim of the respondents that the contract was cancelled has no support and lack
sufficient detail.
The opposing affidavit is inadequate to found a claim for cancellation of the contract in the
absence of proof of cancellation of the contracts. It would appear that respondent unilaterally
reversed the contract. The cancellation of the contract was not lawful as the applicants had not
committed any preach of the contract nor has any valid reason been laid for the purported
cancellation.
Applicants apply for specific performance. The court has a discretion on whether or not to
grant specific performance. Applicants are entitled to the relief sought. As remarked by
ROBINSON JinIntercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21
(1) at P37;
“I would wind up by saying that if the right to specific performance is to be shown to have
real meaning to businessmen, then the laid and clear message to go out from the courts is,
business beware. If you fail to honour your contracts, then don’t start crying if, because of
your failure, the other party comes to court and obtains an order compelling you to perform
what you undertook to do under your contract. In other words, businessman who
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wrongfully break their contracts must not think they can count on the courts when the
matter eventually come before them, simply to make an award of damages in money, value
of which has probably fallen drastically compared to its value at the time of breach.
Businessmen at fault will therefore, in the absence of good grounds showing why specific
performance should not be decreed, find themselves ordered to perform their side of the
bargain, no matter how costly that may turn out to be for them”
The respondent failed to honour the contracts it entered into with its former employees. The
Respondent has not been able to show why an order for specific performance of the two contracts
should not be made against it. The applicants are prepared to carry out their own obligation under
the contract and they have the right to demand a performance of respondent’s undertaking in terms
of the contracts. An order for specific performance is just in the circumstances of this case. Such an
order will not result in any unjust result or hardships as the respondent will be paid the outstanding
payments for the vehicles.
In the result, it is ordered as follows:
1) Respondent be and is hereby ordered to accept payment of the outstanding balance of
US$8 091,85 from each f o the applicants being the balance of the purchase price of
vehicle registration numbers ABI0299 AND ABM 9950.
2) Consequent upon the payment of the balances in paragraphs 1 and2 by the applicants, the
respondent be and is hereby ordered to take all the necessary steps to effect change of
ownership of the said vehicles into the applicants’ names within 7 days of the payment
of the balance of the purchase price failure of which the deputy sheriff be and is hereby
authorised to sign all the necessary papers for change of ownership and seize and
surrender the said motor vehicles to the applicants.
3) Costs follow the event.
Matsikidze & Mucheche, legal practitioner for the applicant
Athersto& Cook, legal practitioners for the respondent