Stratus Capital Partners (Private) Limited v ADC Capital (Private) Limited

### Preamble
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HH 563/25
HCHC 292/25
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STRATUS CAPITAL PARTNERS (PRIVATE) LIMITED

versus

ADC CAPITAL (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

COMMERCIAL DIVISION

MUSHURE J

HARARE; 24 July & 24 September 2025

Court Application for a Declaratur

T. Magwaliba, for the applicant

Z. T. Zvobgo & K. C. Rusike for the respondent

MUSHURE J:

INTRODUCTION

I have before me an application for a declaratur in respect of the applicant’s rights in relation to a three-year Treasury Bill issued by the Government of Zimbabwe on 26 December 2023 and expiring on 28 December 2026, with a maturity value of Five Million United States dollars (US$5 000 000).

The application is opposed by the respondent.

THE APPLICANT’S CASE

The applicant is an investment manager duly registered with the Securities and Exchange Commission of Zimbabwe. On behalf of its clients and its own behalf, it routinely sells, purchases and invests in various instruments and securities in capital markets in this jurisdiction.

In the course of its business and around 16 January 2025, it was contacted by one Ben Mavedzenge (‘Benson’), an executive with one of the applicant’s long-standing clients, Connect the World Limited. It avers that Benson advised it that he was acting on behalf of the respondent, who was on the lookout for a Treasury Bill. It so happened that the applicant had a Treasury Bill which fit the profile that the respondent was on the lookout for.

On 16 January 2025, the applicant and the respondent agreed on the sale of the Treasury Bill at a discounted price of Two Million Eight Hundred Thousand United States dollars (US$2 800 000) on a delivery against payment basis, whose requirement in the securities market is that the respondent was supposed to pay the price before or against delivery of the Treasury Bill.

The applicant avers, further, that it was a specific term of the sale that the price would be paid into the applicant’s nominated bank account with CBZ Limited and against payment, the applicant would transfer the Treasury Bill into the Respondent’s central security depositories (CSD) account with Ecobank Zimbabwe Limited. It was a further term of the sale that if the respondent failed to pay the price, the applicant was entitled to cancel the sale and claim restitution by way of transfer of the Treasury Bill back to the applicant. It is said that on 16 January 2025, Benson confirmed acceptance of the terms of the sale in his capacity as the respondent’s representative.

The applicant explains that time is of the essence in the performance of the parties’ respective obligations so as to establish and preserve investor confidence and market integrity. The applicant therefore delivered the Treasury Bill to the respondent early on 17 January 2025 through FBC Securities, a division or affiliate of FBC Bank Limited, where the applicant operates a Treasury Bill and Treasury Bond CSD account. Benson confirmed receipt of the Treasury Bill on 17 January 2025 and undertook to deliver proof of payment of the price to the applicant before close of business on that day.

The funds were not received, neither was the proof of payment furnished, prompting the applicant to send an email to the respondent requesting for the return of the Treasury Bill. This communication was followed by several efforts to recover the Treasury Bill telephonically, as well as through WhatsApp messages, emails, letters and a meeting held on 24 January 2025.

On 7 April 2025, the Securities and Exchange Commission directed that the sale be unwound and the Treasury Bill be recovered, failing which the applicant would be penalised financially and its licence, canceled.

It is on the basis of the above factual conspectus that the applicant approached this court seeking the following relief: -

The court application for a declaratur be and is hereby granted.

The sale of the Treasury Bill Serial Number FCTB109620231228C (the “Treasury Bill”) by the Applicant to the Respondent be and is hereby declared to have been lawfully terminated by Applicant on or about 17 January 2025.

The Applicant’s right to the return of the Treasury Bill be and is hereby confirmed.

Consequent to the declarations in Paragraphs 2 and 3 of this Order, the Respondent together with any persons holding and/or claiming the Treasury Bill through Respondent be and are hereby ordered to transfer, within seven (7) days of the date of this Order, the Treasury Bill into the Applicant’s Central Securities Depository Account Number 0000050025012 held with FBC Securities (Private) Limited or such other account as Applicant may nominate in writing, failing which the Sheriff of the High Court be and is hereby empowered and directed to sign all papers and do all things necessary to effect the aforementioned transfer.

The Respondent shall pay costs of suit on an attorney and client scale.

THE RESPONDENT’S OPPOSITION

The respondent argues that the Treasury Bill was not sold in the manner described by the applicant. It confirms that it was on the look-out for Treasury Bills and in the process, it approached Benson, a broker, who advised it that the applicant had a Treasury Bill. It avers that with the broker, it negotiated a deal to purchase the Treasury Bill from the applicant at a discounted price. It avers, further, that in negotiating with the applicant, it was guided by its own obligations and requirements relating to a separate irrevocable structured trading transaction, such that it could not have undertaken to purchase the Treasury Bill on a payment against delivery basis. Its intention was to make payment in 2026 before the Treasury Bill matured.

It contends that it was misled into believing that Benson was acting as the applicant’s agent with full capacity to accept, decline and or negotiate the payment terms as they were presented by the respondent. It contends, further, that it went on to accept the sale of the Treasury Bill based on representations made by Benson. It is the respondent’s submission that it seems Benson did not communicate what was required by the respondent and the terms prescribed by the applicant. It submits that Benson accepted, without amendment, its bid document which set out its preferred payment terms. The respondent asserts that it has not breached any of the terms which it agreed to. It further asserts that it has already involved the Treasury Bill in question into another financial transaction, and it is now virtually impossible to remove the Treasury Bill therefrom.

The respondent argues that the applicant is not entitled to the relief sought because it has not demonstrated that the respondent agreed to the alleged terms or that it breached those terms. It denies that Benson was its representative, but argues that he was a broker who carried out the functions of a middle man in negotiating with the applicant and the respondent. It submits that it is apparent that Benson failed in his duty because he did not clearly set out to the applicant the payment terms as prescribed by the respondent.

Following Benson’s email accepting the bid without amendment, the respondent was led to believe that its offer to make payment in 2026 before maturity of the Treasury Bill was acceptable to the applicant. The respondent argues that its representative sent an email to Benson on 14 January 2025 requesting him to clearly confirm whether the exact terms of the respondent’s bid, including the expected delivery timelines, had been accepted but there was no further clarification from Benson, leading the respondent to believe that its offer to pay in 2026 was acceptable.

The respondent argues that at all material times, it believed that Benson was the applicant’s representative.  It contends that what has occurred between the parties is a regrettable incident of miscommunication that ought to be treated in a manner that does not prejudice either party. It contends, further, that a letter by Benson advising the respondent to accept the Treasury Bill does not speak to the requirement to make an immediate payment for the Treasury Bill, neither does the applicant’s letter to the respondent’s bankers dated 16 January 2025.

The respondent denies undertaking to furnish proof of payment on the day it received the Treasury Bill. It blames the applicant for failure to insist on an express undertaking in writing of its acceptance of the Treasury Bill on a payment against delivery basis. It submits that it cannot be faulted for Benson’s failure to communicate its expectations to the applicant because Benson was the applicant’s, not the respondent’s, agent.

The respondent submits, further, that there was no consensus ad idem and effectively no contract since a key term of the contract was not agreed upon due to either a mistake or misrepresentation. The respondent states that it is desirous of handling the matter in a way convenient to both parties and it has repeatedly expressed its desire to renegotiate the payment terms in a bid to amicably resolve the impasse between the parties, but the applicant is bent on forcing the respondent to accept terms which it was never made aware of at the material time. It states, further, that the requirement for immediate settlement of the Treasury Bill was only communicated by Benson on 17 January 2025 after the Treasury Bill had already been delivered to the respondent’s bankers. It also states that the tenor of Benson’s e-mail shows that he was aware that the Treasury Bill was required in another separate irrevocable structured trading transaction with stringent timelines. He was also aware that it would be immediately subsumed into a multi-faceted transaction with various volatile components such that it would be difficult to pull the Treasury Bill out from that deal.

The respondent submits that after a telephone conversation with Benson advising him that it was impossible to return the Treasury Bill, and that it was willing to renegotiate new payment terms acceptable to both parties, Benson then sent another email to the respondent which does not in any way suggest that the respondent breached the terms of the sale but shows that the applicant was willing to proceed with the transaction on condition the respondent provided a new irrevocable commitment to settle the Treasury Bill in the shortest possible time frame.

The respondent asserts that there was never any valid agreement to begin with since the parties were not ad idem, therefore there cannot be a breach on the respondent’s part. On the applicant’s prayer for costs on a punitive scale, the respondent contends that there is no reason why it should be punished by way of punitive costs because it is common cause that the misunderstanding that caused the application is not the respondent’s fault and it had, at all times, negotiated in good faith. The respondent prays for the dismissal of the application with costs.

In its heads of argument, the respondent argues, in limine, that there are material disputes of fact which cannot be resolved on the papers. The material disputes of fact relate to the agreed payment terms and Benson’s role in the whole transaction. It argues that this is not an appropriate matter for the court to issue a declaratur because firstly, the applicant has failed to prove an existing or future right; secondly, the respondent is still within the bounds of the agreement; and thirdly, the Treasury Bill has already been incorporated into another transaction such that it cannot be retrieved at this time.

ORAL SUBMISSIONS BEFORE THIS COURT

At the hearing of the matter, Ms Rusike, the respondent’s co-counsel, argued that the genesis of the dispute stemmed from the role played by Benson. She argued, further, that the facts were not clear in as far as the payment terms were concerned and such dispute of facts could only be resolved by viva voce evidence. She contended that viva voce evidence would determine if there is a valid contract between the parties, the terms thereof, the payment timelines and whether or not the respondent is in breach of the said contract. She further contended that the papers filed of record told two different stories, making it impossible for the court to determine on the papers, whether or not there was a breach by the respondent necessitating the relief sought by the applicant. She accepted that by their own submissions, there was no consensus ad idem between the parties but submitted that the Treasury Bill had been intertwined in another transaction making it impossible for the Treasury Bill to be returned to the applicant.

At the end of Ms Rusike’s submissions, I directed applicant’s counsel, Mr Magwaliba, to make submissions on both the preliminary point and the merits of the matter. Due to a technical challenge, the applicant’s counsel could not either be heard or be seen on the virtual court platform. I directed that the matter be stood down to enable the applicant to access the internet hub at the High Court in Harare, if need be. When the hearing resumed, Mr Zvobgo was now appearing on behalf of the respondent. He stated that he would be appearing as the lead counsel in the matter. I directed him to address specific aspects on the preliminary point, which Ms Rusike seemed to be at sixes and sevens to properly address.

Mr Zvobgo submitted that the respondent was guided by the submissions made by the applicant in the founding affidavit, which submissions stated that there was a valid contract between the parties. He submitted, further, that the applicant was calling upon the court to cancel a contract and that if there was no valid contract, then the court could not grant the relief sought because it was anchored on the argument that there was a valid contract which had been breached. He asserted that an application stands or falls on its founding papers, so the court could not manoeuvre outside what it had been asked to do.

He asserted, further, that if the court was in agreement with the respondent that there was no valid contract, contrary to the applicant’s submissions, the question would be whether the relief could still be granted. He contended that if the applicant submitted that there was a valid contract and the respondent submitted that there was none, surely, that was a material dispute of fact. He further contended that the applicant had not sought to amend the relief it was seeking and that if the respondent was arguing that there was no valid contract, there was nothing for the court to cancel.

Per contra, it was Mr Magwaliba’s submission that there was no material dispute of fact. He submitted that this was a rare case which was capable of resolution on the basis of the respondent’s papers. He submitted, further, that the applicant based its claim on the basis of a valid contract but the applicant was met by a totally insincere attitude by the respondent who unwittingly and unintendedly accepted the existence of a valid contract. He contended that in the respondent’s opposing papers, it was prevaricating by accepting the existence of a valid contract in one breath and alleging that there was no consensus ad idem in the other.  Mr Magwaliba pointed out that in its opposing papers, the respondent did not attach the terms of its acceptance of the offer and this was because the respondent knew that the acceptance had information which was damaging to its case. He pointed out, further, that the deal note issued for this transaction was clear that payment should have been made before delivery of the Treasury Bill. He submitted that the deal note, which the respondent did not deny, was addressed to the respondent to the attention of Benson who the respondent accepts approached them.

He submitted, further, that on 16 January 2025, Benson directed a letter to the respondent giving specific payment instructions. He questioned the motive behind giving payment instructions on 16 January 2025 if it was indeed true that payment had to be made in 2026. He contended that there was an offer which was accepted by the respondent, that the contract was canceled on 17 January 2025 and that demand was made for the return of the Treasury Bill which demand was not met. He contended further, that the respondent averred several times in its opposing papers that it was misled by Benson, so there was no agreement between the parties. Mr Magwaliba argued that if there was no consensus ad idem on a material term of the contract, it follows that there was no contract and the asset delivered in accordance with the invalid contract ought to be restituted.

He argued, further, that the court had material upon which it could make a decision. It was his argument that there was an attempt to use the court to renegotiate the contract but the court could not rewrite a contract on behalf of the parties. He contended that the question of whose agent Benson was is immaterial. He contended, further, that the respondent also prevaricated on Benson’s role. In one instance, it argued that Benson was the applicant’s agent, and in another, it argued that he was a mere broker who misrepresented the terms of the contract to it. However, Mr Magwaliba argued, that was irrelevant because the respondent knew the terms of the transaction from the deal note and it knew the terms of the payment from a demand for payment made on 16 January 2025.

Mr Magwaliba noted that in its heads of arguments, the respondent was now claiming ownership of the Treasury Bill, alleging that the applicant could only claim the purchase price. He asserted that the respondent was being dishonest, its defence was not even clear and the claim that it owned the Treasury Bill was unbelievable. He asserted further, that what was clear was that the respondent received an asset of significant value which it did not want to return upon its failure to pay and that was inimical to the interests of commerce in Zimbabwe. He moved the court to grant the application with costs on a punitive scale in light of the submissions made by the respondent’s counsel.

In reply, Mr Zvobgo submitted that everything that transpired prior to 16 January 2025 was a negotiation process including a 14 January 2025 email which specified that payment was supposed to be made within 48 hours of delivery of the Treasury Bill. He referred the court to the deal note which pointed out that upon payment, the Treasury Bill would be delivered. He contended that the applicant did not explain in its answering affidavit, why it had proceeded to release the Treasury Bill in the absence of the payment. He contended, further, that what was stated in the deal note is not what transpired and this is because there are material disputes of fact.

He argued that the court was being requested to decipher what the agreement was from inconclusive emails and letters. To demonstrate this, he referred the court to the 14 January 2025 email whose import was that payment was to be made within 48 hours, the deal note which stipulated payment before delivery of the Treasury Bill, and yet another email from Benson asking the respondent the time frames within which they wanted to pay. He contended that the respondent had written an email to Benson asking about the payment terms which email was not responded to. On being asked to point out the specific communication asking about the payment terms, Mr Zvobgo referred the court to an email which was speaking to the delivery of the Treasury Bill. He argued that the question on the delivery timeline was co-joined to the question on the payment timeline.

Mr Zvobgo contended that the applicant had not, in its founding papers, specifically pleaded the application of a delivery versus payment model as stipulated in Directive SS03/24, which is the Security and Exchange Commission’s regulatory framework for investment transactions. He contended, further, that the applicant could not do so through the answering affidavit as it sought to do. That allegation, he argued, could not constitute a cause of action. He argued, further, that even if one were to assume that there was a violation of the statutory directive, on the authority of Local Authority Pension Fund v Nyakwahwa HH 60-15, it did not found a civil cause of action but at best, it could constitute ‘criminality in the air’. He reiterated that the only person who could be offended by the breach of a statutory provision was the State.

He disputed that it was inconsequential whether or not Benson was an agent of either party because the applicant had made a key allegation that he was the respondent’s agent and if it was doubtful that he was the respondent’s agent, then the resulting contract itself was thrown into question. The court had not heard Benson’s version but it had been furnished with an email in which Benson was making an offer to the respondent. Once the court was unclear about his role, it could not take it for granted that he was the respondent’s agent and the court was not in a position to determine the existence of the contract or its breach. He prayed that the application be struck off.

He submitted that after the deal note of 16 January 2025, Benson sent an email on 17 January 2025 asking about a short window within which to settle. According to Mr. Zvobgo, this confirmed the existence of material disputes of facts. The court queried the absence of any document to prove the 2026 payment agreement, to which he pointed out that the email of 17 January 2025 requested an irrevocable commitment from the respondent, after which the discussions then fell apart.

Mr Zvobgo accepted that the bid document had not been placed before the court but was quick to point out that there was nothing to show that the contract was as stated in the founding affidavit.  He submitted that the bid document was not submitted to the applicant, but it was submitted to Benson. He accepted that it was prudent to place the bid document before the court but, nonetheless, the point was that the agreement was being postulated from various documents. He submitted that even if the bid document was submitted on 12 January 2025, subsequent discussions then took place.

I asked Mr Zvobgo to comment on the allegation that there was a meeting in which the respondent undertook to return the Treasury Bills, to which Mr Zvobgo submitted that that was specifically denied in the opposing affidavit. On the possibility of returning the Treasury Bills, Mr Zvobgo submitted that the opposing papers had averred that due to the sensitivity of the transaction, the information on whom it was sold to could not be pleaded in a public document and that it would be unreasonable to expect that six months later, the Treasury Bill was just sitting in the respondent’s account.

Responding to the points of law arising from Mr Zvobgo's submissions on the merits of the matter, Mr Magwaliba pointed out Directive SS3/24 was not the cause of action. The respondent’s defence was that it acted lawfully, it was not accepting any liability and there had been no breach. The directive had been placed before the court to demonstrate the market practice and the regulatory framework in dealing with Treasury Bills.

At the end of Mr Magwaliba’s response, I advised the parties that I would reserve judgment. It turned out that Ms Rusike had not fully advised Mr Zvobgo that the court had adopted a rolled-up approach. He then requested to address the court on the question of costs which, with Mr Magwaliba’s consent, I allowed, in the interests of justice.

Mr Zvobgo then submitted that costs on a punitive scale were not warranted, as the respondent could not be penalised for persisting with a legal argument which it believed could carry the day. The respondent had not sought to mislead the court on issues of fact and the question before the court would be resolved by the court’s interpretation of the documents placed before it. He submitted that in the event that the court dismissed the preliminary point and granted the declaratur, costs on an ordinary scale would suffice.

ISSUES ARISING FOR DETERMINATION

From the written and oral submissions by the parties, it seems to me that two issues arise for determination:

Whether or not there are material disputes of fact incapable of resolution on the papers.

Whether or not the applicant has made a case for the grant of a declaratur.

Before I turn to analyse these issues, I pause here to note that, should I find that there are material disputes of fact in this matter, that determination will be dispositive of this matter and it will therefore not be necessary for me to determine the second issue: See Gwaradzimba N.O v C J Petron and Co (Pty) Ltd 2016 (1) ZLR 28 (S), at p 32 B.

WHETHER OR NOT THERE   ARE MATERIAL DISPUTES OF FACT INCAPABLE OF RESOLUTION ON THE PAPERS

The question of what constitutes a material dispute of fact has been traversed in a plethora of authorities in this jurisdiction including in the case of Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at p136F-G, wherein Makarau JP (as she then was) remarked that: -

“A material dispute of fact arises when 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”

In Muzanenhamo v Officer in Charge CID Law & Order & Ors 2013 (2) ZLR 604 (S), Patel JA (as he then was), laid out the court’s approach in dealing with motion cases where a material dispute of fact arises in the following manner: -

“A general rule in motion proceedings, the courts are enjoined to take a robust and common-sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party. See Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (S) at 235A; Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S) at 339 C-D; Ex- Combatants Security Co. v Midlands State University 2006 (1) ZLR 531 (H) at 534 E-F.

The first enquiry is to ascertain whether or not there is a real dispute of fact.” (at p 608 A-C).

That case is also authority for the proposition that the mere allegation of a possible dispute of fact is not conclusive proof that it exists. What is required is for a respondent to set out his or her defence in clear and cogent detail. A bare denial of an applicant’s material averments will not suffice. The opposing papers must show a bona fide dispute of fact incapable of resolution without viva voce evidence having been heard. See also Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at p 1165.

If I have correctly understood the respondent’s contention in its heads of argument, then its basis for arguing that there are material disputes of facts arises from Benson’s role in the whole transaction and the agreed payment terms for the Treasury Bill. In order to properly ventilate this issue, I find it necessary to relate to the pleadings filed of record.

I note that in its opposing affidavit, the respondent initially submits that it was advised by Benson that the applicant had Treasury Bills which the respondent was on the look-out for. The respondent describes Benson as a broker with whom the respondent negotiated a deal to purchase the Treasury Bill from the applicant. What emerges from this submission is that firstly, Benson was a broker and secondly and most critically, with Benson, the respondent negotiated a deal with to purchase the Treasury Bill from the applicant at a discounted price. In the respondent’s own words, the first version before the court is that the Benson was a broker whom it approached.

The respondent then submits that it was misled into believing that Benson was acting as an agent for the applicant with full capacity to accept, decline and / or negotiate the payment terms of the transaction as they were presented by the respondent. It occurs to me that the respondent, by making this averment, is accepting that it was misled by Benson on his role and on the basis of being misled, it assumed that Benson was the applicant’s agent. By the respondent’s own submissions, this is the second version of Benson’s role- that of an agent.

The respondent then goes on to submit that it accepted the sale of the Treasury Bill on the basis of representations made by Benson. This time, the respondent decides to revert to its original description of Benson as a broker. It goes on further to deny that Benson was not its representative, and repeats that he was a broker who carried out all the functions of a middle man in negotiating with the applicant and the respondent. It goes on to submit that ‘it is now apparent that Benson as broker between applicant and respondent failed in his duty in that he did not clearly set out, to the applicant, the payment terms as they were prescribed by the respondent’. What clearly emerges from the respondent’s opposing affidavit is that the respondent is oscillating between calling Benson a neutral broker and when it suits it, it points him out as the applicant’s agent.

The respondent further argues that an email by Benson dated 14 January 2025 proves that he was not the respondent’s agent. That email states that

“Dear Fallon

I refer to the captioned transaction and your bid which we acknowledged and accepted without amendment and advise as follows.

We are awaiting transmission of the bills directly to your CSD account held by ECOBANK. The expectation is that within 48 hours of receipt of the bills payment in respect of settlement should be executed. We do acknowledge that our counterpart asset management firm has had uncharacteristic delays in expeditiously concluding the transaction, however we can assure you that we do have in our deal pipeline up to $30 Million which we can transact with yourselves between now and first week of February as long as you have the appetite. We are as we speak, awaiting confirmation, of transmission and will be updating you very often until settlement of all your needs for paper.

We thank you, appreciate your custom and assure you that we will deliver on all our commitments”

The respondent argues, on the basis of the first sentence in this email and the assurance that there was up to $30 million in Benson’s deal pipeline, that Benson was acting as the applicant’s representative. I am of the view that the email should be read in context because in the same email, Benson refers to the applicant as ‘our counterpart’. The Cambridge Dictionary defines a counterpart as a person or thing that has the same purpose as another one in a different place or organisation while the Merriam Webster Dictionary defines the word to mean ‘one having the same function or characteristics as another’. I find no reason read Benson’s reference to the applicant’s representative as ‘our counterpart’, to mean that Benson was representing the applicant. It seems to me he was simply referring to a business counterpart who is in the same trade as him. Therefore the fact that Benson accepts and acknowledges the bid document does not, in my view, suggest that the acceptance was in any representative capacity. Neither does the fact that Benson states that there is in their deal pipeline $30 million suggest that he was referring to the applicant’s specific deal pipeline.

I am fortified in my view by the respondent’s own submissions that, it is the respondent and Benson who jointly negotiated for a discounted price for the Treasury Bill. There is no explanation why, if Benson was acting for the applicant, he would join forces with the respondent to negotiate for a discounted price to the respondent’s benefit. I conclude that he could only do so because he was protecting the interests of the respondent, who had approached him.

I am further fortified in the view that I hold by the fact that in a letter dated 16 January 2025, Benson accepts the applicant’s offer for the Treasury Bill on behalf of the respondent. In that letter, Benson describes the respondent as ‘our client’ and provides the applicant with the respondent’s banking details to enable transfer of the Treasury Bill. The respondent neither questions nor denies this acceptance, or Benson’s reference to it as ‘our client’.

Benson then authors an email on 17 January 2025 confirming receipt of the Treasury Bill by the respondent and undertakes to share the proofs of payments ‘shortly’. Again, Benson refers to the respondent as ‘our clients’. The respondent does not question the fact that Benson wrote an email to the applicant describing it as Benson’s clients, but only confines itself to questioning the payment terms. This is telling.

In my view, weighing  the respondent’s contradictory submissions against the applicant’s submissions and the correspondences placed on record, I cannot conclude that the respondent has controverted and dealt with the material facts alleged by the applicant on Benson’s role in a manner that is so comprehensive that at the end of the day, there are divergent positions between the parties which can only be resolved through the leading of viva voce evidence. In my further view, the respondent cannot seek to hide behind its own varying descriptions of Benson’s role to allege that there are material disputes of fact when there are none. Allegations of material dispute of fact cannot be made as a matter of fashion. The material dispute of fact purported by the respondent on Benson’s role is illusory and should not detain the court. I find that there is no material dispute of fact in relation to the role played by Benson.

This brings me to the second issue, namely the payment terms as agreed between the parties. A number of key issues stand out from the respondent’s written and oral submissions in relation to the payment terms.

Earlier on in this judgment, I have referred to an email by Benson in which he acknowledged and accepted the bid ‘without amendment’. It is this sentence that the respondent is using to strenuously argue that its bid document, which is not before the court, was accepted without amendment. However, as I have remarked earlier on, the email should be read in context. I note that in the same email, Benson states that he is awaiting transmission of the bills directly to the respondent’s CSD account and that the expectation was that payment for the Treasury Bill should be executed within 48 hours of receipt.

What I find strange is the respondent’s selective application of the contents of that email. On the one hand, it seeks to hinge its argument that there were other terms for payment in its bid document which were accepted without amendment but on the other hand, when it comes to the 48-hour payment clause in the same email, it argues that the email marked the commencement of negotiations. It is my view that the respondent cannot approbrate and reprobate at the same time. It is either the contents of that email marked the commencement of negotiations or that the bid document was accepted without amendment and the expectation was that payment would be executed within 48 hours.

On record is an email dated 14 January 2025 from the respondent’s representative, Fallon Shamhu (‘Fallon’), responding to this email. In that email, Fallon seeks clarification regarding the expected delivery date for the Treasury Bill which the respondent had made an offer on. She states that “As we move forward with our plans, it is crucial for us to have a clear understanding of the expected delivery timeline. This information will assist us in our financial planning and ensure that all arrangements are in place”. The respondent argues that implicit in this email was the question on when payment was expected.

I am unable to agree. The earlier e-mail had stated that payment was expected within 48 hours of delivery of the Treasury Bill. However, that email was not clear on when the Treasury Bill would be delivered and stated that the applicant had experienced uncharacteristic delays in expeditiously concluding the transaction. Coming against this backdrop, my conclusion is that Fallon was pressing Benson to give the respondent a clear expected delivery timeline for the respondent’s planning purposes. I do not read that email to request the applicant to provide an expected payment timeline, more so considering that the applicant had already indicated the expected payment timeline in the email Fallon was responding to. In my view, had there been issues with the payment timeline, the respondent would have clearly stated so considering how critical this issue was to the whole transaction.

The respondent has harped on the deal note which was sent to Benson by the applicant. The deal note is dated 16 January 2025. It tenders an offer to sell the Treasury Bill at a discounted amount and gives the applicant’s account details. In its opposing affidavit, the respondent argues that the sale of the Treasury Bill was not on a delivery against payment basis. It argues, further, that nowhere in the deal note does it state that the sale is on a payment against delivery basis. However, the deal note clearly states that ‘Upon payment for the treasury bills we will transfer the bills into the below custodian account’. In my view, contrary to the respondent’s averments in the opposing affidavit, there can be no clearer language that the sale was on a delivery against payment basis.

Curiously, at the hearing of this matter, Mr Zvobgo seemed to depart from this averment and instead argued that there is no explanation why the terms of the deal note were not adhered to. If I comprehended his arguments correctly, then Mr Zvobgo was accepting, contrary to the sworn averments in the opposing affidavit by the respondent’s own representative, that the deal note does stipulate that the sale was on a delivery against payment basis, but sought to shift the argument by questioning the absence of an explanation why this was not adhered to. I comment in passing that this approach of inconsistent arguments is undesirable as it places the other party in an invidious position where they are unable to properly prepare for the case they have to meet and are taken by surprise.

Reverting to the issue at hand, I note from the record a series of correspondences which confirm that the sale of the Treasury Bill was on a delivery against payment basis. In response to the applicant’s offer in the deal note, Benson writes a letter on 16 January 2025 accepting the offer, giving the respondent’s CSD account details. He concludes that letter as follows: Kindly avail the bank confirmed bill transfer instructions for us to alert our bankers to anticipated (sic) and promptly receive the bills. The same day, Benson writes to the respondent confirming the respondent’s purchase of the Treasury Bill at a discounted rate and requesting it to settle the proceeds of Three Million United States dollars (US$3 000 000), comprising Two Million Eight Hundred Thousand United States dollars (US$2 800 000) to the applicant and Two Hundred Thousand United States dollars (US$200 000) to Benson’s company.

On record is an email from FBC Bank sent on 17 January 2025 at 1133hrs, confirming that the Treasury Bills were settled. On record is also another email sent by Benson earlier on the same day at 1042hrs to the following effect ‘I write to confirm that the above stated bills have been received successfully by our clients, we will be sharing with your proof of payments as I receive same shortly to complete settlement’.

At 1054hrs the same day, Benson requests Fallon, by email, to settle the Treasury Bill on the basis that the Treasury Bill has settled in the respondent’s CSD account at Ecobank. At 1310hrs the same day, Benson writes to Fallon and one Roderick advising them that the applicant has requested reversal of the bills forthwith because the applicant expected immediate settlement upon confirmation of receipt of the Treasury Bill into the respondent’s CSD account.

On 20 January 2025, which is the next working day, a letter is written to FBC Bank by the applicant, requesting a recall of the Treasury Bill for non-settlement. On 21 January 2025, another letter is written to the respondent through Benson referring to numerous phone calls and WhatsApp messages, requesting a recall for the Treasury Bill due to failure to make payment.

I have earlier on adverted to a meeting which was held by the parties on 24 January 2025 wherein the respondent is alleged to have made an undertaking to return the Treasury Bill. At the hearing of the matter, I asked Mr Zvobgo to comment on this aspect and he submitted that that had been denied. I note from the opposing papers on record that in response to the applicant’s submissions on this issue, the respondent asserts that ‘This is denied’. It then goes on to relate to its impression that the sale was not a sale against delivery basis; the lack of consensus ad idem; Benson being a broker; the allegation that the error occurred due to miscommunication and accuses the applicant of wanting to foist new terms upon it.

I note that the respondent does not answer to the specific averments of the parties holding a meeting and the respondent undertaking to return the Treasury Bill. What we have is a bare ‘this is denied’. In my view, a mere ‘this is denied’ hardly qualifies as setting out, in clear and cogent detail, the respondent’s response to this material averment that a meeting was held and critical undertakings were made in that meeting. The respondent’s failure to specifically and clearly detail its response to this claim is detrimental to its case.

In determining whether or not there is a material dispute of fact which cannot be resolved on the papers with regards the agreed payment timeline, I am persuaded by Heher JA’S observations in Wightman T/A JW Construction v Headfour (Pty) Ltd & Another 2008 (3) SA 371 (SCA) at p375 G-I that:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied…..”

In my view, on the written and oral submissions of the respondent, I am unable to conclude that there is a real, genuine and bona fide dispute of fact. On account of the evidence before me, I am also unable to conclude that the payment terms were different from what the applicant has submitted. Firstly, the respondent relies on a bid document to argue that the agreed payment repayment date was in 2026. Conveniently, the respondent submitted that the bid document was availed to Benson Mavedzenge and not the applicant.

The respondent was able to place before the court all other correspondences relating to the transaction, but it chose to withhold this vital bid document which, for all intents and purposes, would have resolved the dispute before the court without further ado.   In my view, there is more to the withholding of that bid document than a mere omission. I am inclined to agree with the applicant’s argument that the bid document contains information damaging to the respondent’s case hence its decision not to place it before the court.

In my view, the respondent cannot withhold information from the court and use that as a basis to argue that there is a material dispute of fact.  This court has often reiterated the need for litigants seeking the court’s protection to be candid with the court. In Sadiqi v Muteswa & Ors HH-281-20 Mafusire J noted that:

“Litigants should not play hide-and-seek with the courts. Lawyers should not behave like hired guns. They are officers of the court. Litigation is not a game of wits. It is a serious and scientific process to resolve disputes amongst individuals and to settle problems in the society. The search for truth is paramount. It is a duty thrust upon everyone. A party that conceals material information from the court must be unworthy of its protection or assistance. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter.” (at p.5-6) [Emphasis added].

In the inexplicable absence of the bid document on which the respondent hinges its defence, I unable to find that the respondent has seriously and unambiguously addressed the facts on the agreed payment period. In the absence of that document, a bare denial of an applicant’s material averments will not suffice. Ultimately, such a bare denial would not meet the requirement of there being a real, genuine and bona fide dispute of fact.

Secondly, the respondent argues that the first time it heard about the payment against delivery basis was when Benson sent an email after the Treasury Bill had already been delivered to the respondent’s bankers. Nothing can be further from the truth because as early as 14 January 2025, the immediate payment requirement was communicated. In the deal note, the same requirement was repeated. On 16 January 2025, Benson requested payment for the Treasury Bill. Immediately after Benson confirmed delivery of the Treasury Bill, he sent an email to Fallon, requesting her to pay for the Treasury Bill. Further, by the respondent’s own submission, their emails, which contained proposals to pay in 2026 were not responded to.

There is no reason why the respondent seeks to conclude that because the emails were not responded to, then the applicant accepted its terms. Various correspondences which I have alluded to above were made including a meeting on 24 January 2025, in a bid to recall the Treasury Bill for failure to adhere to the delivery against payment requirement. Additionally, aside from arguing the propriety of attaching Directive SS3/24 to the answering affidavit, the respondent did not dispute the averment that it is the standing market practice that securities transactions are on a delivery against payment basis.  In the ultimate, I have not been given any reason to doubt that this is indeed the practice in the securities market and that this particular sale was on a delivery against payment basis.

The respondent seeks to argue that an email from Benson sent on 17 January 2025 at 1521hrs confirms that the agreed payment was on an undisclosed date in 2026. I hold a different view. From my reading of that email, after Benson sent an email reversing the transaction for non-payment, he indicated in the same email that in the event that by the time the letter was received transfer would have already been made, he needed to be informed so that the position could be resolved accordingly. He requested confirmation of receipt of the email and sharing of the reversal instructions.

Benson then sent another email two hours later advising that they had negotiated to stand down the recall instructions but on condition of an irrevocable commitment to settle. He advised that they had been given a very short window within which to settle which they needed to operate within. He requested the respondent to properly guide him so that he would be able to deliver that irrevocable commitment to settle by 1600hrs. Benson further requested a short payment time frame. I do not read this email to confirm a 2026 repayment agreement. In my judgment, this email meant to salvage a situation in the event that it was no longer possible to return the Treasury Bill as requested by the applicant.

On the basis of the above, I have difficulties concluding that there are material disputes of fact in relation to the payment period. I am constrained to conclude that the respondent has disputed and traversed the material facts alleged by the applicant in a manner as to leave me with no ready answer to the parties’ dispute in the absence of further evidence.

Resultantly, I dismiss the preliminary point that there are material disputes of fact in this matter.

WHETHER OR NOT THE APPLICANT HAS MADE A CASE FOR THE GRANT OF A DECLARATUR

A party seeking a declaratory order approaches the High Court in terms of s14 of the High Court Act [Chapter 7:06] which provides that: -

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

The crisp position of the law is that in determining whether or not to grant a declaratory order, the court’s approach involves a two-stage inquiry. In the first stage, the court inquires into whether or not the applicant is an interested person in the sense of having a direct and substantial interest in the subject matter of the suit, which could be prejudicially affected by the judgment of the court. The second stage involves an inquiry into whether, notwithstanding a finding in the first stage that the applicant has a direct interest, the particular case is a proper case for the court to exercise its discretion under s14: See Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR 337 (S) at 343F-344A; and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (H).

It is also a settled position of the law that some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought: See Nyashanu v Netone Cellular (Pvt) Ltd 2019 (1) ZLR 248 (H) at 252G-H.

The applicant is seeking a declaration that its sale of the Treasury Bill to the respondent was lawfully terminated by the applicant on or about 17 January 2025. It seeks confirmation of its right to the return of the Treasury Bill. It is common cause that the applicant was holding the Treasury Bill until 17 January 2025 when it was delivered to the respondent. The condition for the delivery was that the respondent was expected to pay for that Treasury Bill. It is common cause that the respondent has not paid for that Treasury Bill. I have already exercised my mind on the agreed payment period and concluded that the respondent’s argument that the payment is due on an undisclosed date in 2026 before the Treasury Bill matures on 28 December 2026 is without basis.

The court is being asked to inquire into the circumstances of the sale and demand for return of that Treasury Bill. In view of the position I have taken in relation to the agreed payment period for the Treasury Bill, I have no doubt in my mind that the applicant is an interested person because it has a direct and substantial interest in the subject matter of this application. In the result, I answer the first leg of the inquiry in the affirmative.

The second leg of the inquiry is whether this is an appropriate case for the court to exercise its discretion under s14 of the High Court Act. That inquiry involves a further examination of the law and its application to the facts of this case. In casu, we are dealing with the law of contract of sale. According to the learned author R.H. Christie, Business Law in Zimbabwe 2nd ed, Juta & Co Ltd at p 141:

“A sale in Roman – Dutch law has been defined (by DE Villiers CJ, approved by the Privy Council, in Hutton v Lippert (1883) 3 App, Cas 309) as:

‘a contract in which one person promises to deliver a thing to another, who on his part promises to pay a certain price.’

This may be paraphrased as the exchange of property for a price or, because the equivalent Latin words are often found in the judgments, the exchange of a merx for a pretium….”

The learned authors G. Bradfield and K. Lehmann in their text Principles of the Law of Sale and Lease 3rd ed Juta at p24 make the important point that:

“ For a contract to be considered one of sale, the identifying features, or essential elements (essentialia) of a contract of sale must be present: the seller must intend to sell and the buyer to buy, and there must be agreement on the subject matter of the sale and on a price to be paid for it. In the absence of agreement on these aspects, the contract is not one of sale…”

Thus, in order for a sale to exist, there must be an agreement to exchange property for a price. If either of these two constituents is lacking, there is no sale. In a cash sale, a purchaser must pay the purchase price at the time when the seller delivers the property sold. If the sale is on a credit basis, the parties generally agree that the purchase price will be paid on a specific future day: G. Bradfield and K. Lehmann op. cit. at p100.

Going by the respondent’s submissions before this court, the respondent’s standpoint on the existence of the contract is not clear. On the one hand, the respondent argues that the Treasury Bill was not sold in the manner described by the applicant. It contends that the applicant cannot cancel the sale because the respondent has not breached any of the terms of the contract and that the sale between the parties remains valid. By making these submissions, it occurs to me that the respondent is accepting that there was a contract of sale between the parties.

However, the respondent presents a second argument. It is that there was no consensus ad idem and effectively no contract between the parties due to what it terms either a mistake or misrepresentation. On the basis of this argument, it presents quite clearly to me that the respondent is denying the existence of the contract, contending that there was no meeting of the minds. If there was no meeting of the minds, it follows that there was no contract. Mr Zvobgo however insisted that even if there was no contract between the parties, the applicant is still not entitled to relief because it is seeking cancellation of a contract.

Yet, that is not all. In its heads of argument, the respondent now argues that it has not breached the contract and as such, the applicant only has rights pertaining to the outstanding payment which it is going to settle in 2026. It argues that the applicant no longer has a right to the Treasury Bill itself because in terms of the agreement, the respondent is now the recognised owner of the Treasury Bill.

Properly construed, the respondent has placed before the court two positions, namely that it is not in breach and secondly that there was no consensus ad idem. The respondent cannot be allowed to take two positions which are inconsistent with each other. It is either there was a contract or there wasn’t. The respondent cannot blow hot and cold when it suits it.

On the question of whether or not the parties were ad idem, I have earlier on related to the various correspondences between the parties. There is nothing on record to suggest that the parties were not ad idem.  What I find peculiar is, in the face of its argument that the parties were not ad idem,  the respondent seeks to cling on to the Treasury Bill which it received on the strength of an invalidity. Surely, the respondent cannot argue that it will still retain the Treasury Bill which it is not entitled to because the applicant has not sought the appropriate relief before the court. If the respondent was sincere in its dealings with the applicant, this matter would not even have had to get this far if there was no contract between the parties.

In my judgment, the argument that there was no consensus ad idem is but one of the respondent’s various ways to throw dust in this litigation process to ensure that by all means, the applicant does not get back its Treasury Bill. The respondent is trying by all means necessary to wriggle out of liability by claiming that firstly, there was no contract and then turning around and saying it has not breached the contract. This is most unfortunate to the notion of justice.

In the ultimate, I find that the claim that the parties were not ad idem is just a bald, unsubstantiated averment. There is therefore no basis to find that the parties were not ad idem.  On the basis of the various correspondences, I have already related to and the position I have taken in relation to the meeting between the parties held on 24 January 2025, I find that the respondent was aware of the terms of the sale, accepted those terms of the sale but did not honour its payment obligations.

The learned author R.H. Christie op. cit. at p155 states that:

“A buyer who neither accepts delivery nor pays the price has repudiated or committed a breach going to the root of the whole contract……”

It being common cause that the respondent has not paid for the Treasury Bill, I find that the respondent is in breach of the contract between the parties.

As to the remedy sought by the applicant, R. H. Christie goes on to say at p157 that:

“After delivery an unpaid seller in a cash sale is entitled to reclaim the property if cash is not paid within a reasonable time….”

There is therefore nothing untoward about the applicant claiming return of its Treasury Bill as suggested by the respondent.

I am being called upon to determine whether this would be an appropriate case for me to exercise my discretion and grant the declaratur sought by the applicant. In motivating that I do not exercise my discretion, the respondent has, in its papers, argued that the Treasury Bill has been subsumed into a multi-faceted transaction making it impossible to retrieve it. Again, the respondent, who is seeking this court’s protection, chooses to play its card very close to its chest and does not disclose the specific details of this transaction.

Instead, it argues that Benson’s 17 January 2025 email to the effect that ‘in the event that by the time you get this letter a transfer will have already been made let us know immediately so we can resolve the position accordingly….’  confirms this position. While this may confirm that Benson was aware that the Treasury Bill was due for another transaction, it does not confirm that the Treasury Bill was indeed disposed of, neither does it dispense with the need for the respondent to place conclusive proof of its assertion before the court.

At the hearing of the matter, during discourse with Mr Zvobgo concerning the lack of any information before the court to support the respondent’s submission, he sought to argue that due to the sensitivity of the transaction, the information on whom the Treasury Bill was sold to could not be pleaded in a public document. Besides the fact that this was a new averment, different from the submission that the Treasury Bill had been subsumed into a multi-faceted transaction as earlier on pleaded by the respondent, Mr Zvobgo did not point to any legal basis upon which he was making that averment. The respondent cannot just wake up and argue that certain information is restricted even to the court adjudicating over its matter without any legal basis for doing so. On the basis of the respondent’s failure to place any cogent evidence to support its claim that it is now virtually impossible to return the Treasury Bill, and the inconsistent statements on the particulars of the transaction involving the Treasury Bill, I hesitate to find that this would not be an appropriate case for me to exercise my discretion and grant the declaratur as prayed for.

In the premises, I am therefore satisfied that this is a case in which the court should exercise its discretion in terms of s14 of the High Court Act.

On the question of costs, the position of the law is that courts will not lightly accede to a prayer for an award for costs on a legal practitioner and client scale. It is only in exceptional circumstances where, for example, the unsuccessful party’s conduct has been completely unreasonable and reprehensible that a court may depart from the general position that costs are awarded on the ordinary scale. See Borrowdale Country Club v Murandu 1987 (2) ZLR 77 (HC), Chioza v Sawyer 1997 (2) ZLR 178 (S).

In my view, the respondent’s case is marked by dishonesty as demonstrated by the various inconsistent averments outlined in this judgment. In my further view, this was a matter which should have been settled earlier but the respondent decided to buy time by advancing spurious arguments. The court has no option but to show its displeasure by awarding costs on a higher scale.

DISPOSITION

In the result, it is ordered as follows: -

The court application for a declaratur be and is hereby granted.

The sale of the Treasury Bill Serial Number FCTB109620231228C (the “Treasury Bill”) by the Applicant to the Respondent be and is hereby declared to have been lawfully terminated by the Applicant on or about 17 January 2025.

The Applicant’s right to the return of the Treasury Bill be and is hereby confirmed.

Consequent to the declarations in Paragraphs 2 and 3 of this Order, the Respondent together with any persons holding and/or claiming the Treasury Bill through the Respondent be and are hereby ordered to transfer, within seven (7) days of the date of this Order, the Treasury Bill into the Applicant’s Central Securities Depository Account Number 0000050025012 held with FBC Securities (Private) Limited or such other account as Applicant may nominate in writing, failing which the Sheriff of the High Court be and is hereby empowered and directed to sign all papers and do all things necessary to effect the aforementioned transfer.

The Respondent shall pay costs of suit on an attorney and client scale.

Mushure J: ……………………………………..

BeraMasamba, applicant’s legal practitioners

Zvobgo Attorneys, respondent’s legal practitioners