Zvikomborero Murahwi v Pam Golding Properties

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HH 491/25
HCH5578/21
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ZVIKOMBORERO MURAHWI

versus

PAM GOLDING PROPERTIES

HIGH COURT OF ZIMBABWE

MUSHURE J

HARARE, 9 & 20 May & 1 September 2025

T. K. Gombiro for the plaintiff

D. Tivadar for the defendant

Civil Trial

MUSHURE J:

INTRODUCTION

The plaintiff in this matter is a self-employed male adult. He is married with two children. One of his children, now 19, was born with a disability which presents muscle and mobility challenges. The disability requires expensive drugs and regular physiotherapy which in turn, require adequate funding. Sometime in 2018, the plaintiff and his wife realised that they would not be able to sustain the expenses incidental to their child’s special needs. As any responsible parents faced with such a situation would do, the plaintiff and his wife had to make the difficult but necessary decision to dispose their immovable property, being a certain piece of land situate in the district of Salisbury called Stand 373 Athlone Township of Lot 2A Green Grove, measuring 4238 square metres and held under Deed of Transfer number 1582/86, commonly known as number 10 Terry Drive Greendale Harare (‘the property’) to fund those special needs. It is at this point that they decided to mandate the defendant, a firm of real estate agents, to facilitate the disposal of the property.

Through the defendant’s facilitation, a purchaser, Elizabeth Bore, was found. After the necessary formalities, she purchased the property for One-Hundred and Ninety Thousand United States dollars (US$190 000).

However, consequent to this purchase, a series of events with far reaching consequences took place, such that to date, the plaintiff has not received the proceeds of that sale, amounting to US$168 127.02.

It is for this reason that on 15 June 2021, the plaintiff issued summons in this court against the defendant. His claim in the summons is couched as follows-

“The plaintiff’s claim for-

An order declaring the Defendant to be indebted to the Plaintiff in the sum of one hundred and sixty-eight thousand one hundred and twenty-seven United States Dollars plus two cents (USD$168 127.02) being the money the Defendant received on the 28th of August 2018 as an agent of the Plaintiff for the immovable sale transaction of the property being Stand 373 Athlone Township of Lot 2A Greengrove. The defendant was furnished with banking details and clear instructions on where to deposit the proceeds on 26th August 2018.

An order for consequential relief being the payment of the sum of USD$168 127.02 to the Plaintiff.

An order for payment of interest on the above-mentioned sum at the prescribed rate calculated from the 28th of August 2018 being the date the Defendant received the money from the purchaser to the date of payment in full.

An order for the payment of costs of suit.

Alternatively,

An order for contractual damages to be paid to the Plaintiff in the sum of USD$168 127.02 arising from the wrongful and intentional breach of the agency contract between the Plaintiff and the Defendant by the Defendant’s failure to timeously remit to the Plaintiff, money paid to its Trust account and belonging to the Plaintiff before the advent of statutory instrument 33/2019 resulting in the financial prejudice of the Plaintiff in the sum of USD$168 127.02.

An order for the payment of interest on the above-mentioned sum at the prescribed rate calculated from the 28th of August 2018, being the date of receipt of USD190 000 by the Defendant from the buyer, to the date of payment in full.

An order for the payment of costs.”

The plaintiff’s declaration is long, but in order to put his claim into its proper perspective, it is necessary that I summarise his key averments therein as follows-

He signed a sales mandate agency agreement on 26 August 2018. This agreement post-dated his intention to enter into the agency relationship based on the plaintiff’s absence in Zimbabwe. The mandate appointed and ratified the defendant’s conduct in advertising, identifying a buyer, drafting an agreement of sale, appointing a conveyancer and receiving payment on behalf of the plaintiff. He settled for the defendant based on its reputation, standards and affirmation that they could remit the proceeds of the sale to his South African bank account.

It was a specific term of clause 3 of the agreement of sale that the agreement would be void if the mortgage bond funding the transaction was not obtained within 21 days of signing the agreement. In terms of clause 17 of the agreement of sale, the agreement would also be void if the currency of payment was anything other than United States dollars.

Contrary to these clauses, the defendant proceeded with the sale transaction beyond the 21 days and caused the payment of the purchase price into the conveyancers’ Trust account. Despite several demands from the date of payment of the purchase price, namely 28 August 2018, the defendant had not paid him his dues according to the agency agreement.

Following the enactment of statutory instrument 33/2019 (also known as the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) Regulations, 2019), assets and liabilities expressed in United States dollars were converted to the local RTGS dollars, and this, the plaintiff avers, was contrary to clause 17 of the agreement of sale. Yet, the defendant refused or neglected to cancel the agreement of sale. The defendant fast tracked the transfer of the property, acted in favour of the purchaser and deliberately withheld the proceeds of the sale after receiving instructions for transfer of the proceeds on 26 August 2018.

The plaintiff had even gone to the extent of opening a local bank account with Stanbic Bank in February 2021 but still, the defendant had not heeded his instructions to deposit the net proceeds amounting to USD168 127.02 after deduction of the relevant taxes and commission.

The defendant was denying its obligation to strictly enforce the agreement of sale that it had prepared as the sole agent acting on behalf of the plaintiff.

His prayer was for the court to declare that the defendant was liable to pay him the sum of USD168 127.02 for adamantly persisting with the sale transaction contrary to his expectations and the clauses of the agreement of sale.

The plaintiff’s alternative argument in the declaration is that the defendant breached the sole agency agreement by failing to strictly enforce the terms of the agreement of sale prior to pushing the plaintiff to facilitate transfer on the following bases:

His interpretation of the sole agency relationship was that he had vested all his rights in the defendant to diligently protect his expectation for the funds to be deposited into his South African bank account.

The defendant acted negligently, wrongfully and intentionally to cause him financial prejudice by failing to cancel the agreement of sale after breach by the purchaser.

The defendant could not distance itself from liability having been the drafters of the agreement of sale, and having unilaterally appointed the conveyancers, identified a purchaser, unnecessarily held on to the proceeds of the sale, nominated the ‘self-appointed’ conveyancers as an option to handle transfer of the sale proceeds and frustrated the plaintiff’s efforts to reverse the sale.

The defendant has contested the action. It contends in its plea that while it was mandated by the plaintiff to facilitate the sale of his property through advertising the property, sourcing for the purchaser, receiving the purchase price and remitting the purchase price to the plaintiff, it has performed its mandate. It asserts that the plaintiff withdrew the obligation to remit the money and vested it with the conveyancers. It denies unnecessarily withholding the sale proceeds funds. It states that it does not hold the funds and therefore it has no obligation to pay those funds. On the issue of the alleged breach, the defendant pleads that it was not a party to the agreement of sale so it had no obligation to enforce that agreement.

In their joint pre-trial conference minute following a pre-trial conference held before a judge, the parties identified the issues for trial as:

Whether or not the defendant breached its mandate agreement to the plaintiff by failing to remit the funds from the purchase price, in United States dollar currency.

When was the mandate to the defendant by the plaintiff terminated?

Whether or not the defendant dispensed with its obligation to remit the plaintiff’s funds from the purchase price upon being instructed by the plaintiff to pay the funds to IEG Musimbe and Partners.

Whether or not the plaintiff has been prejudiced by the defendant’s failure to remit the purchase price.

Whether or not the defendant still holds money on behalf of the plaintiff.

Whether or not the defendant was responsible for cancelling the sale agreement between plaintiff and the purchaser.

Whether or not the plaintiff is entitled to a declaration, with consequential relief, of the defendant being indebted to him in the sum of USD$ 168 127.02.

Should item (g) above be found in the affirmative, should the defendant be indebted to the plaintiff, as a foreign obligation.

Alternatively

Whether or not the defendant is liable to pay contractual damages in the sum of USD$168 127. 02 arising from the wrongful and intentional breach of the agency contract between the parties.

THE PLAINTIFF’S CASE

The plaintiff led evidence in support of his claim. He was detailed in his evidence. His evidence was as follows: After one of his two children was born with disabilities at Avenues Clinic in Harare, the attending paediatrician recommended further diagnosis and possible assistance in South Africa.  Within five months of the child’s birth, the plaintiff and his family relocated to South Africa. The child’s condition was further diagnosed by another paediatrician and confirmed by a specialist at the age of three years. They decided to sell the property so that they could sustain the huge expenses incidental to the child’s treatment. Consequently, the plaintiff communicated his intentions with the defendant’s agent, one Valerie Mugairi, through emails, WhatsApp messages and telephonically. He could not give the defendant the mandate to sell the property before getting confirmation that the defendant could remit the funds to his account in Johannesburg, South Africa. He produced an undated WhatsApp message which he exchanged with Valerie, in which she said that the remittance could be arranged as proof that the confirmation was given.

After the agent had agreed that the defendant would transfer the proceeds of the sale into his account, he signed a sole mandate form which gave the defendant the right to sale the property and deposit the proceeds into his account in South Africa. He produced the sole mandate form as part of his evidence. The document he produced is titled ‘Sales Mandate Requirements Form’ and it was signed by the plaintiff on 26 August 2018.

He testified that some offers were tabled but he settled for Mrs Bore’s offer which was made on 29 May 2018 and accepted on 6 June 2018. The defendant’s agent proceeded to prepare an agreement of sale which the plaintiff agreed to and signed. He referred the court to the agreement of sale which he testified was clear on the currency of transaction and what would happen if there were violations. He emphasised that the purchaser was supposed to obtain a loan within 21 days but the purchaser did not manage to do so. It was his evidence that in terms of a letter of undertaking from CBZ, registration was supposed to be done by 15 October 2018 but registration was done way before that date.

The plaintiff told the court that the purchase price was paid to the conveyancers. It was then transmitted to the defendant but he was not paid. According to him, the conveyancers were appointed by the defendant, although he did not have proof to that effect. He had been told by the defendant’s agents that they worked with the conveyancers. He stated that the defendant received the purchase price on 28 August 2018. The defendant confirmed that the funds could be transferred to any offshore account within 24-48hrs. He did not receive those funds and this was a big blow to him as he urgently needed the money to attend to his child’s special requirements. He even advised the defendant to reverse the sale if the defendant was not going to do the transfer.

He testified that at some point, the defendant told him that the transfer of the purchase price could not be done because the country’s central bank, the Reserve Bank of Zimbabwe (‘RBZ’), had regulations which changed during the transfer process. He testified that he was only advised of this in November 2018. He testified, further, that he was left wondering what the defendant was doing with the money from August to November 2018 without putting the money into his bank account. He testified that just before the sale of the property was concluded, there were changes in the regulations which the defendant never advised him of.

It was his testimony that to his knowledge, there was never an attempt to immediately transfer the money. At every point, he had asked for evidence of the movement of the money, but it was never provided. He said on 29 August 2018, he communicated with Valerie that the sale could not be concluded until he received his money. As proof, he produced an email in which, in part, he expressed surprise that the conveyancers had written to the second plaintiff’s witness stating that they were closing the file. He made it clear that the transaction could not be complete until he received the full proceeds of the sale in his account and he had verified the statement of account for the transaction.

To him, the agency relationship would terminate upon his receipt of the money. He said he had written another email in which he was making sure that he would get the proceeds of the sale into his account before the purchaser could be handed over the title deeds but the defendant did not adhere to this. He stated that the defendant was refusing to take his instructions and it was violating his own rights. This email, dated 27 July 2018, is addressed to a ‘Mufudzi’ and reads

“Mufudzi,

Thank you for your email and all the support.

As I have said before, the deeds will be released only when the buyer has paid. Val is aware and am copying her this response.

Lots of love,

Zviko.”

He testified that he believes that his money was stolen. He was never given any proof of the transaction even though he made several requests. He even asked for the proof of a transfer which was said to have failed in November 2018 but he was given none. He even gave a different bank account after realising that his money would not be transferred to his account in South Africa. To support this, he produced an email addressed to the defendant’s representative which he sent on 1 February 2021. In that email, he requested transfer of the funds to a local Stanbic Bank foreign currency account whose details he provided. In the same email, he also requested the documentation on the applications the defendant made to RBZ for the transfer of the proceeds to his Standard Bank account in South Africa.

He stated that the was expecting the transfer to be reversed because he was not receiving the proceeds. In support of his evidence, he produced an email dated 30 August 2018 and addressed to the defendant’s representative in these proceedings, Juliet Irene Harris. In that email, the plaintiff explained his discussions and agreement with Valerie, including the instructions Valerie had given him to instruct the conveyancers to deposit the sale proceeds into the defendant’s bank account to enable transfer of the money into his own account in South Africa. He expressed concern over indications from Valerie that the transaction was in local currency and stated that if that was the case, the sale had to be reversed.  He then gave Juliet two options- to either reverse the sale and return the title deeds to the plaintiff or to pay the purchase price in United States dollars, converted to an equivalent amount of South African Rand.

He testified that he then wrote another email after the defendant ignored his calls for the transaction to be reversed. This email is dated 28 December 2018. In that email, he was responding to another email and he stated that he was not accepting anything besides either an immediate reversal of the sale or an immediate payment or transfer of the sale proceeds into his bank account.

It was his evidence that not only once or twice did he request a reversal of the sale, but nothing happened. He testified that the defendant totally reneged on its obligations to him as his agent and this had damaged his relationship with his daughter and immediate family. He broke down as he was narrating the trauma the transaction had caused him.

On being cross-examined, the plaintiff confirmed that the contents of his summons and declaration were true. He accepted that the document which he had produced as the sale mandate form was not the mandate but a ‘Know your customer’ (‘KYC’) form, wherein he had to provide his information. He admitted that the agreement of sale was between himself and the purchaser, although he insisted that it was the defendant’s responsibility to manage the contract of sale and to see the performance of the agreement of sale to finality. He accepted that the agreement did not specifically state that the defendant would receive the proceeds of sale but hastened to state that the agreement of sale was drafted by the defendant.

He had to be asked several times if he ever cancelled the agreement of sale with the purchaser before he admitted that he never sent an email to the purchaser to cancel the sale. He confirmed that before 30 August 2018, he had not attempted to cancel the sale. He said that this was because he had no reason to cancel. He confirmed that payment had been received by the conveyancers on the 27th of August 2018 and by the defendant on the 28th of August 2018. He insisted that he never gave the defendant any instruction to transfer the money to anyone else. However, after much haggling, he then begrudgingly accepted that he had instructed Juliet to give the money to the conveyancers after she had indicated that she had zero chances to do the transfer of the sale proceeds to his South African bank account.

At the invitation of the court, the plaintiff stated that he had not heeded the defendant’s and conveyancers’ advice to personally take the matter with the RBZ because he had engaged an agent to do that for him.

This witness was evasive and the court had to caution him several times to answer the questions. The court even had to ask his legal representative to explain to him the importance of answering questions and the consequences of his failure to do so.  As will be demonstrated later on in this judgment, some portions of his evidence significant to this case were incorrect. On this basis, his evidence is unreliable in some material respects.

The plaintiff called his younger brother, Shepherd Murahwi, as a witness. Shepherd was residing at the property up to the time of its disposal. He was a signatory to the agreement of sale by virtue of a special power of attorney given by the plaintiff to act on his behalf. To him, the obligation to remit the funds fell on the defendant. For the first time, we were told in his evidence-in- chief that Valerie suddenly disappeared in the midst of this transaction and to him, this was a clear indication of unprofessional conduct. On plaintiff’s counsel seeking clarity, it turned out the alleged ‘sudden disappearance’ cuts no ice in this matter because Shepherd had fully performed his mandate per the special power of attorney by the time it allegedly occurred.

Shepherd testified that the deed of transfer was processed before the money was paid and this was the defendant’s doing. He had been evicted in June two weeks after the signing of the agreement of sale. He met Juliet on the 29th of March and she had told him that the funds would be transferred and that there were no challenges. When pressed to indicate the year, he said he did not remember. When questioned how he could remember the date but not the year, he then said it was in 2021. He stated that he had followed up that meeting with an email which was in his computer, outlining the action points arising out of the meeting.  He accused Juliet of acting unprofessionally, untruthfully and unethically by failing to honour her undertaking to revert to him after the meeting, and in the process, further strained his already compromised relations with the plaintiff.

Shepherd was unaware of any challenges in remitting foreign currency outside Zimbabwe at the relevant time. To him, nothing needed to be done for the money to be remitted. When he was asked by defendant’s counsel why he had taken Juliet’s word in 2021 yet earlier on he had viewed them as unprofessional, untruthful and unethical, he said his trust was rejuvenated by Juliet’s promise to remit the sale proceeds and that he was also dealing with a reputable real estate agency firm.

When pressed, it was his evidence that he recalled seeing emails between the plaintiff and the defendant, in one of which Juliet mentioned that RBZ authority was required. He did not recall the email mentioning that there was a liquidity crisis in Zimbabwe in 2018. It did not strike him as strange that there was an issue of RBZ approval being required in 2018 yet in 2021 Juliet was saying there were no challenges. He stated that it was an irrelevant issue looking at what the agreement of sale says. He pointed out that the agreement of sale spells out the conditions under which the sale was supposed to happen.  He accepted that the agreement of sale did not say that the money would be paid in South Africa. He testified that he was not aware who was holding the funds in 2021 but he wanted to believe it was the defendant per the provisions of the agreement of sale.

He said the plaintiff had shared quite a lot of information with him and that in September 2018, his brother had told him that the conveyancers had received the proceeds of the sale from the defendant. When asked to confirm that, he then changed and said his brother never told him that. When it was pointed out to him that he was changing his testimony, he changed again said he could not recall. In total, he gave three versions of the same event.

He was questioned on the letter from the conveyancers confirming receipt of the purchase price from the defendant. This letter was copied to him. He responded that he did not recall that letter, and said perhaps, he might have seen it. He said he did not have any reason to say the conveyancers were incorrect to say they received the funds in 2018. When asked if the plaintiff was not knocking on the wrong door by going after the defendant two years later, he said the relationship was between the defendant and the conveyancers.

He also stated that the plaintiff had told him of an application to RBZ in November 2018 but when asked why then he was going to the defendant in 2021, he was dismissive of that application as a non-event.

During re-examination, he initially said he was aware of each and every detail of the relationship between the plaintiff and the defendant. Counsel for the plaintiff then asked if he knew everything. He made an about turn and said he might not know everything. He was asked if he knew everything that transpired and he said he knew much of it. He was asked, further, if he would confirm that there were things he had forgotten about and he responded that, that was the reason why he said much of it. Counsel had to caution him not to put himself in a position where he appeared knowledgeable. After this caution, he was asked if he agreed that there might be areas which he had forgotten or were not clear, he then responded in the affirmative.

Just like the plaintiff, Shepherd was evasive. We heard for the first time a narration of events which although very critical to the plaintiff’s case, were never placed before the court. The fact that plaintiff’s counsel had to caution him not to appear knowledgeable is telling. His evidence was not convincing.

Shephard’s testimony marked the end of the plaintiff’s case.

THE DEFENDANT’S CASE

Juliet gave evidence on behalf of the defendant.  She is a managing director of Jusashe Investment (Pvt) Ltd which owns the franchise for the defendant. She testified that the plaintiff authorised the defendant to sell the property by virtue of a sole agency mandate form. The defendant’s mandate was to identify a potential purchaser of the property, introduce that purchaser to the plaintiff, draft the agreement of sale and when transfer was concluded, the defendant would receive proceeds of the sale for onwards remittance to the plaintiff.

The defendant identified a potential purchaser and introduced her to the plaintiff. The defendant provided the plaintiff with an agreement of sale which is a normal precedent. The practice is that this precedent is sent to the buyer, the seller and the conveyancers for amendments and inclusions if any, and once feedback is received from the parties, it becomes a final draft which all parties have to confer on and agree to before the seller and the purchaser append their signatures.

Juliet confirmed receiving instructions on remittance of the proceeds. She also confirmed advising the plaintiff on the liquidity crisis and the three options available to him. The plaintiff chose the third option, which was to transfer the funds to the conveyancers. The defendant complied with that instruction. Juliet was not aware of any obligations that were not fulfilled by the defendant under the sole agency mandate. Her comment to Valerie’s WhatsApp message was that the advice that remittance of funds to South Africa could be arranged was correct at the time. She pointed out that the agreement of sale set the terms and conditions of the sale. The defendant was not a party to the agreement of sale so it was not entitled to cancel it. She produced the letter of undertaking from CBZ to the conveyancers confirming that they were holding the funds and would make the payments. She also produced an email from the conveyancers dated 29 August 2018 addressed to the plaintiff and copied to Valerie advising the plaintiff of the transfer of the purchase price to the defendant per the plaintiff’s instructions and also gave a breakdown of the purchase price, and other deductions comprising Capital Gains Tax, bank charges, agent’s commission, Value Added Tax and outstanding City of Harare rates, bringing the net proceeds to US$168 131.12.

She testified that the defendant advised the plaintiff of the three options a day after receiving the proceeds of sale. She stated that she had also responded to the plaintiff advising him on the need to make an application to RBZ and that this was in terms of the laws of Zimbabwe at that time. Up to the time during the plaintiff’s transaction, remittance of funds was almost an internal procedure. One would still apply to their bank but because there was no liquidity crisis, one would only have to provide the agreement of sale as proof that the seller was resident outside Zimbabwe as well as proof that the seller’s liabilities had been met within Zimbabwe and literally, within 24 to 48hrs, the approval would be granted and the funds remitted.

Following an email from the plaintiff on 10 September 2018, instead of the defendant instructing its bank to apply to RBZ, it had to ask the conveyancers to do that.  The conveyancers were using Stanbic Bank which had more chances than the defendant’s Nedbank which was having no success at all. She produced an email which she sent to the plaintiff on 10 September 2018 in which she advised the plaintiff that she saw very little success in the application being approved at that time as remittance of proceeds from the sale of a property was not on the priority list unlike applications pertaining remittance of funds for medical, fuel and education needs. This was her honestly held opinion after she had consulted with the bank and the conveyancers. The plaintiff responded on 11 September 2018 and wrote

‘As per my email of yesterday and the options you gave me through your email of August 30, let us keep this process simple and use the Conveyancers to do the transfers to my account’

Juliet understood the plaintiff to be instructing the defendant to transfer the funds to the conveyancers so that they could apply for RBZ to remit the funds to the plaintiff’s bank account in South Africa. She referred the court to an email dated 12 September 2018 from the conveyancers in which they also spoke to the acute shortages of foreign currency and that there was no guarantee of the funds being remitted anytime soon. This accorded with Juliet’s experience at that time with remittances to United States of America and the United Kingdom. However, Stanbic Bank had recorded some successes with transfers to South Africa although no one could give any guarantees.

She produced an email from the plaintiff to the conveyancers dated 24 September 2018. In that email, the plaintiff requested the conveyancers to make necessary arrangements for the proceeds of the sale to be transferred to his bank account in South Africa. To Juliet, it was not possible for the conveyancers to arrange transfer without the funds because the application is made with confirmation that the funds are held by the person making the application in their Trust account.

The position as at 25 September 2018 was that the funds that were being held by the defendant had been transferred back to the conveyancers on the plaintiff’s instructions. The conveyancers confirmed the receipt by an email to the plaintiff on 25 September 2018. The defendant has not received those funds to date. They are still being held by the conveyancers. On 2 November 2018, the conveyancers wrote an email to the plaintiff advising him that the application had been approved by RBZ and they were now waiting for the forms from the bank to enable the conveyancers to proceed with the transfer of his funds. To that email is attached communication from Stanbic Bank recording that RBZ had approved the application made by the conveyancers on the instructions of the plaintiff.

In a 3 December 2018 letter, after the plaintiff laid fraud allegations against the conveyancers, the conveyancers advised the plaintiff that he could take up his application personally with the RBZ and that it was now a matter beyond their control. They had done their part and they could not do anything beyond that stage. They requested the plaintiff to furnish them with a local bank account to enable them to transfer his amount held in their Trust so that he could transfer the money to South Africa on his own.

She stated that the plaintiff did not heed that advice.  In an email dated 3 April 2020, she explained to the plaintiff that at the time the defendant attained the mandate, it was certainly within its mandate that within 24 to 48 hours, sale proceeds could be transferred to the seller upon production of the agreement of sale, proof of the seller’s residence and proof that the seller had settled its liabilities within Zimbabwe. She had done such transactions without hassle but just before the plaintiff’s money was paid to the conveyancers by CBZ, the liquidity crisis set in and they could not transfer funds as they used to. The regulations had changed around July/ August. She had not advised the plaintiff of this requirement at the point of engagement because it was not in existence. She had not advised the plaintiff when she heard talk about it because she was not aware of its severity. She disputed that if she had advised the plaintiff when people started talking about it, the situation could have been salvaged because by that time, the horses had already bolted as transfer had already gone through.

On the appointment of the conveyancers, she testified that the purchaser was being represented by IEG Musimbe and Partners in the application for the mortgage bond and they requested to be the conveyancers. The plaintiff was advised that the defendant had no problems with them as they were reputable and it had dealt with them before. She produced a letter from the conveyancers to the plaintiff dated 18 October 2019 in which they stated that they were appointed by conveyancers at the behest of the purchaser who was their client not the defendant.

She disputed that the defendant evicted the plaintiff. The only person who had the right to evict the plaintiff was the purchaser. The misunderstanding was that the purchase price had been paid and Valerie advised Shepherd to move out. The purchaser had said if they did not vacate the property, she would take legal action. This was never done because Shepherd then vacated the premises on his own.

She disputed that she had advised Shepherd, two and half years after the sale, that there were no challenges with remitting the proceeds of the sale to South Africa. There were problems which they had already highlighted in 2018, and there was no change. There is no way she would have advised that there were no challenges as alleged by Shepherd.

During cross examination, Juliet stood by her testimony. She stated that in terms of the defendant’s mandate, the mandate was supposed to terminate or mature after the funds had been remitted to the plaintiff. She admitted that up to now, those funds have not been remitted to the plaintiff but she said this due to RBZ. She had remitted the funds to the conveyancers on the plaintiff’s instructions and she could not be held responsible if the plaintiff refused to approach RBZ, even after being advised to do so several times. She insisted that the transfer of the funds to the conveyancers terminated the defendant’s mandate. She disputed that the conveyancers were the defendant’s proxy. She further disputed that it was on the basis of her advise that the plaintiff engaged the conveyancers. She said at the end of the day, the decision lay with the parties. She had not attempted to do an offshore remittance when the defendant was holding the plaintiff’s funds without the plaintiff’s instruction because the plaintiff had not issued that instruction.

While RBZ approved the application, it never remitted the funds. In her view, the fault lay with the plaintiff whom she had advised, together with his brother and sister, to personally go to RBZ to follow up on the application, but the plaintiff had not. The application at RBZ was in the plaintiff’s name and the conveyancers had even tried to apply for a legacy debt but the plaintiff did not heed the repeated advice to personally pursue this application. She disputed that the defendant had left the plaintiff at sea and failed to perform its mandate. The defendant was not responsible for the changes in the law. She also disputed that she had refused to follow the plaintiff’s instructions to cancel the contract because only the plaintiff could cancel the contract and, in any event, there had been no breach. She said she had verbally advised him that the agreement of sale could not be cancelled when transfer had already been registered.

This witness gave her evidence well. She gave simple, straight-forward and consistent evidence.

ISSUES FOR DETERMINATION

I have already outlined the issues that were placed before me for determination at the pre-trial conference. From my reading of those issues, I am of the view that these issues can be further distilled into two broad categories with the other issues forming sub-issues under the two main issues. These broad issues are-

Whether or not the plaintiff is entitled to a declaration, with consequential relief, that the defendant is indebted to him in the sum of USD 168 127.02.

In the alternative, whether or not the defendant is liable to pay contractual damages in the sum of USD168 127.02 arising from the intentional breach of the agency contract between the parties.

WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO A DECLARATION, WITH CONSEQUENTIAL RELIEF, THAT THE DEFENDANT IS INDEBTED TO HIM IN THE SUM OF USD 168 127.02

It is a settled position of the law that a party seeking a declaratory order approaches the High Court in terms of s 14 of the High Court Act [Chapter 7:06]. The said section 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.”

A respectable body of authority in this jurisdiction has pronounced that a court seized with a request for a declaratory order conducts a two-stage inquiry. In the first stage, the court inquires into whether or not the plaintiff 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 plaintiff has a direct interest, the particular case is a proper case for the court to exercise its discretion under s 14 of the High Court Act. 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 trite that some tangible and justifiable advantage in relation to the plaintiff’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.

Applying these requirements in casu, I have no doubt in my mind that the plaintiff is an interested party. There is no debate that the money forming the subject matter of this matter is his. The plaintiff seeks to gain some tangible and justifiable advantage to himself to the extent that he has an interest in having his existing, future or contingent rights on the proceeds of sale determined.  His interest is not imagined, neither can it be said to be too remote to be incapable of being genuinely protected by the law.

The critical issue is whether or not this is an appropriate case for this court to exercise its discretion and grant the declaration order as prayed for by the plaintiff. I turn now to look at the second requirement vis a vis the evidence placed before this court.

To support the plaintiff’s claim, both the plaintiff and his witness presented unconvincing and unreliable evidence.  It is accepted that the principal-agent relationship between the plaintiff and defendant commenced with the signing of a sole agency mandate. This document is part of the evidence before this court and warrants comment.  It will be recalled that during cross-examination, the plaintiff was asked if the summons and declaration were true to which he responded in the affirmative. If the summons and declaration are true, what this means is that the court now has a different version of the document that created the principal-agent relationship. In his summons and declaration, an impression is created that the sole mandate was signed on 26 August 2018, postdating the plaintiff’s intention to enter into the agency agreement based on his absence from Zimbabwe. Another impression is created in the summons and declaration that the 26 August 2018 document appointed and ratified the defendant’s conduct in advertising, identifying a buyer, drafting the agreement of sale, appointing a conveyancer and receiving payment on behalf of the plaintiff.

When he gave his evidence in chief, the plaintiff produced this document, holding it out as the defendant’s mandate. He never related to the actual sole agency mandate which he signed at the time he entered into the principal-agent relationship with the defendant. It was only during cross-examination that he accepted that this document was not the sole agency mandate form. The correct sole mandate form is the one which was produced by the defendant and it is undated. The plaintiff’s evidence betrays a deliberate intention to mislead the court which started in the summons through to the plaintiff’s examination-in-chief.  I say deliberate because we now know that as early as 30 August 2018, the plaintiff wrote an email to Juliet, attaching the same document which he now calls the sole agency mandate but correctly calling it a KYC form. Therefore, the plaintiff knew, as far back as 30 August 2018, which document was the sole agency mandate and which was the KYC form.  On that score, there is a huge gulf between the summons and declaration and the plaintiff’s testimony, making the evidence mutually destructive.

Yet, that is not the only instance the plaintiff’s oral testimony was on a tangent with the evidence on record. The plaintiff attempts to pin liability on the defendant on the basis that it is the defendant who appointed the conveyancers. The evidence on record shows that the conveyancers unequivocally stated that they were appointed by the purchaser, who is their client. The communication to that effect was sent to the plaintiff on 18 October 2019. Yet, the plaintiff clings to the argument that it is the defendant who appointed the conveyancers, which argument he has known is not true for at least four years. Why the plaintiff insists on that argument, it’s a mystery. That argument has no merit and is not supported by any shred of evidence.

Further, the plaintiff testified that the letter of undertaking from CBZ stated that transfer was supposed to be registered by 15 October 2018 yet the transfer was fast tracked by the defendant. Nothing can be further from the truth. On 16 July 2018, CBZ Holdings advised the conveyancers that it was holding the purchase price. It would be payable to the conveyancers upon written advise that the transfer of the property and the first mortgage bond had been registered with the Registrar of Deeds.  The concluding paragraph of that letter states that ‘This letter of undertaking expires on the 15th of October 2018 and is neither negotiable nor transferable and must be surrendered to the Bank for payment.”

There is nothing in that letter to suggest that the transfer had to be done by 15th of October 2018. A simple reading of this letter shows that the purchase price was only payable to the conveyancers upon confirmation in writing that the transfer of the property and the first mortgage bond had been registered with the registrar of deeds. The letter of undertaking would expire on 15 October 2018.

It will also be noted that in terms of clause 2.1 of the agreement of sale, the purchase price would be paid within twenty-one days of signing the agreement of sale through a CBZ mortgage bond into the conveyancers’ Trust account. It was a further term of the agreement that upon signing the agreement, the purchaser would apply for a first mortgage bond with CBZ Bank.  Transfer of the property to the purchaser would be tendered by the conveyancers within a ‘reasonable period’ after payment of the purchase price in full. The defendant would get a commission of 5% of the purchase price on transfer of the property. The plaintiff testified that he read the agreement of sale and signed it after reading it, meaning he was aware of the processes that would take place until he was paid. If indeed he read the documents as he testified, the part of the evidence purporting that the transfer was fast tracked is significantly incorrect.

Shepherd weighed in on this false narrative by testifying that the transfer preceded the payment.  This is simply not true based on the letter of undertaking from CBZ Bank and the agreement of sale. The letter of undertaking from CBZ, which the plaintiff was given, indicated that CBZ was holding the purchase price and set conditions which had to be complied with. I have already related to clause 2.1. of the agreement of sale which Shepherd signed on behalf of the plaintiff. The conditions in both the agreement of sale and the letter of undertaking involve attending interviews at Zimbabwe Revenue Authority (ZIMRA). All that was done with the full participation of the plaintiff and Shepherd. I did not hear any of the plaintiff’s witnesses to say they were frogmarched to ZIMRA or that they participated under duress. Surely, they could not have done these motions if the purchase price had not been paid. This version of events from the plaintiff and his witness is typical of witnesses trying to mislead the court.

Further, it is also not true that Shepherd was evicted in June. The paper trail produced before this court shows that it was only in July that communication on the payment of the purchase price came through. By parity of reasoning, Shepherd could not have been evicted before the payment went through in July 2018. The purchaser did not have any basis upon which she could evict this witness. Additionally, Juliet’s evidence that Shepherd was not evicted but moved out of the property has not been challenged before this court. In my view, the witnesses wanted to create an impression of the defendant’s agents working underhand and, in the process, they resorted to misleading the court.

Shepherd testified that he was told by Juliet in 2021 that there were no challenges with the remittance of funds. I find his testimony implausible. Curiously, it did not strike him as odd that in 2021, when he had the meeting with Juliet and was purportedly reassured that there were no challenges in remitting the money, a period of close to three years since the transaction had lapsed. The money had not been paid for nearly three years yet he knew that at the time the agreement of sale was signed, one of the terms of the agreement were that the money would be paid within 21 days. It is unbelievable that he found comfort in an undertaking to pay money after three years, yet the same person who was making that undertaking had failed to pay that money which, for all intents and purposes, was needed urgently, for three years.

I must state that the courts take a dim view of litigants who choose not to be candid with it. I cannot better the words of Mangota J in The Sheriff for Zimbabwe & Anor v Njokoya & Anor HH667-22 to the effect that: -

“A litigant who makes up his mind to withhold from the court vital information which he knows is adverse to his case is not better than one who tells a blue lie to the court. He is a dishonest litigant whom the court cannot reward if, as is the case in the present proceedings, what he withheld later comes to the attention of the court. The court spoke eloquently on the disposition of such a litigant and the consequences which will visit him for his dishonesty. It stated in Deputy Sheriff, Harare v Mahleza, 1997 (2) ZLR 425 that:

“People are not allowed to come to court seeking the court’s assistance if they are guilty of a lack of probity or honesty in respect of the circumstances which cause them to seek relief from the court”.

In stating as it did, the court was only emphasizing the principle of honesty which the court laid down in Underbay v Underbay, 1977 (4) SA 23 (W) at 24 E-F wherein it was stated that:

“It is fundamental to court procedures in this country and in all civilized countries that standards of faithfulness and honesty be observed by parties who seek relief. If this court were not to enforce that standard, it would be washing its hands of its responsibility.”

Indeed, courts the world over look with more sympathy on litigants who place them (courts) into their confidence than on those who choose to lie or mislead them by withholding information which is vital to the determination of their case(s). A litigant who tells his story in a clear, concise and unambiguous manner is by any standard, more preferable to the one who chooses to tell a lie. It is for the mentioned reason, if for no other, that the court cited with approval the learned words of L.H. Hoffman and D.T. Zeffert’s South African Law of Evidence, 3rd edition, p 472 who stated, in Leather Trade Zimbabwe (Pvt) Ltd v Smith, HH 131/03, that:

“……...if a litigant gives false evidence, his story will be discarded and the same adverse inferences may be drawn as if he has not given any evidence at all.”” (at p. 5 of the cyclostyled judgment.”

A party that conceals material information from the court must be unworthy of its protection. A party seeking relief must take the court into his confidence by laying bare all the relevant facts on the matter:  Sadiqi v Muteswa & Ors HH 281-20 at p5-6.  I find that the lack of candour by both the plaintiff and his witness is damaging to the plaintiff’s case. The plaintiff cannot seek the court’s protection after being dishonest with it.

The plaintiff is adamant that it was the defendant’s duty to ensure that the remittance of the funds was done. As correctly pointed out by his counsel in the closing submissions, the cases of Zimre Insurance Company Limited v Bell Atlantic (Pvt) Ltd HH228-11 and Tevera v Makaranga HB-175-15 hold that the agent has a duty to follow his principal’s instruction. In their text Gibson: South African Mercantile and Company Law, 8th Ed, Juta & Co, Visser et al  state at p219 that the duties of an agent are (a) to perform his mandate (b) honestly and (c) carefully, (d) in accordance with his principal’s instructions, and (e) to account to his principal.

An important point is made by the authors that

‘An agent must perform his mandate exactly in accordance with the authority, express or implied, given to him by his principal. An agent is strictly held to the terms of his instructions. It is no answer or defence to say that he acted, or intended his act to be, for the benefit of his principal (Nel v SAR & H 1924 AD 30)’ (at p224).

The agent’s duty to obey the principal’s instructions extends to further instructions that may be given by the principal. The author, F.M.B. Reynolds, in Bowstead on Agency 15th Ed, Sweet & Maxwell at p140 notes that subject to any special circumstances indicating the contrary, the agent is bound to obey all lawful and reasonable instructions of his principal in relation to the manner in which the agent carries out his duties.

This point is emphasised by R. H. Christie in Business Law in Zimbabwe, Juta & Co, 1998 at p342 where the author observes that an agent’s primary duty is to perform his mandate and if he does not perform in accordance with the mandate, the agent will be liable to the principal or damages for breach of this duty. However, R. H. Christie notes that in performing his mandate, the agent must obey his principal’s instructions. In my judgment, at the core of an agent’s duties is obedience to the principal’s instructions.

In casu, it is not in dispute that after the payment of the money to the conveyancers, the plaintiff instructed the conveyancers to transfer the money to the defendant. After certain developments, the money found its way back to the conveyancers. The circumstances leading thereto have been subject of debate in these proceedings. While the plaintiff initially stated that it did not issue instructions for the money to be transferred to the conveyancers, the defendant insisted that in transferring the money to the conveyancers, it was only carrying out the plaintiff’s instructions for the conveyancers to process the remittance of funds to the plaintiff. Only belatedly did the plaintiff grudgingly accept that he had instructed Juliet to transfer the proceeds of the sale to the conveyancers. Still, he attributed this concession to the fact that Juliet had told him that there were nil prospects of getting the approval through Nedbank.

For completeness, it is necessary to relate to the relevant communication trail starting by the detailed contents of Juliet’s 30 August 2018 email. She advised the plaintiff that the country was in the throes of a liquidity crisis and that the proceeds of sale could not be transferred to a seller’s nominated account outside of Zimbabwe, without prior approval from the RBZ. She advised that once the balance of the purchase price reflected in the defendant’s account, the defendant would then instruct its bankers to apply to RBZ, on the plaintiff’s behalf, so that the sale proceeds could be remitted to the plaintiff’s bank account in South Africa. She advised, further, that she saw little success in the outcome.

Juliet then advised the plaintiff that he had three options open to him. One, the proceeds could be transferred into the defendant’s Trust account for onward transfer to the plaintiff’s nominated local Zimbabwean account. Two, the monies could be transferred into the defendant’s Trust account and the defendant would ask its bankers to apply to RBZ on his behalf to remit the sale proceeds to his nominated South African account. She clarified that until such a time the RBZ granted its approval, the proceeds would be held in the defendant’s Trust account.

The third option was for the plaintiff to instruct the conveyancers, instead of the defendant, to do the transfer straight to his nominated local account or to instruct their bankers to make an application to RBZ to remit the sale proceeds to his South African account. Juliet emphasised that the defendant was not trying to stop the remission of the proceeds to the plaintiff’s nominated account, but it was governed by the laws of the land which, at that time, did not allow for remittance without the specific approval from the RBZ. She went on to advise the plaintiff to seek independent legal advice if he wished to do so.

A subsequent email from Juliet on 7 September 2018 clarified that payment had been made in United States dollars and that amount could be remitted into a local account. If the payment was required in South Africa, the plaintiff would have to apply to the RBZ for remittance of the funds. Juliet reiterated her earlier advise for the plaintiff to seek legal advice on this issue. The plaintiff’s response on 10 September 2018 was that legal advice was not necessary to establish the currency of the transaction as this was clearly stated in the agreement of sale. He wrote, further, that ‘As per your email of 30 August 2018, can the Conveyancers instruct their bankers to make an application to RBZ to remit the sale proceeds to my RSA account’.

Juliet wrote back to the plaintiff the same day advising him that she would seek clarity from the defendant’s book keeper if the defendant was holding the proceeds. If it was, it would instruct its bank to make the application on his behalf. She repeated that she saw very little success in the approval of the application because of remittance of proceeds from the sale of a property was not on the priority list compared to applications for medical, fuel and education requirements. In response, the plaintiff told Juliet to keep the process simple and use the conveyancers to do the transfers. This was on 11 September 2018. Later on that day, Juliet advised the plaintiff that the proceeds had been transferred to them, and sought confirmation from him whether the defendant could make the application.  The plaintiff responded by email on 12 September 2018 indicating that since the conveyancers handle the transfers, the right thing to do was for them to do the transfer into his account. As the record will show, not once, but thrice, did the plaintiff issue the instruction that the conveyancers handle the transfer.

These emails were being copied to the conveyancers. After this email, the conveyancers wrote an email to the plaintiff on 12 September 2018 and advised that they had taken note that the plaintiff wanted them to make an application for remittance outside the country. They advised, further, that their experience had been that while the application could be done, there was no guarantee the application would be processed anytime soon due to the acute foreign currency shortages in the country. They specifically advised the plaintiff that they had made an application for another United States based client a year earlier but the application had not yet been approved.

On 25 September 2018, the conveyancers wrote to the plaintiff to advise that they had received back the purchase price on 18 September 2018, but there were no accompanying instructions so they did not know what to do with the money. On record is an email sent by the plaintiff to the conveyancers on 24 September 2018. The email reads:

‘Thank you for your email.

Kindly please make the necessary arrangements for the money to be transferred into my account in South Africa. Attached is a copy of the KYC with all the necessary instructions and details which I completed and submitted to PAM Golding Properties. I hold no Zimbabwean Bank Accounts’

I have related to this email trail extensively to show that contrary to the plaintiff’s narrative that he is not aware of the whereabouts of the money and that he never instructed transfer of the money to the conveyancers, he knows that the money was transferred back to the conveyancers on 18 September 2018 and this was done on his instruction. During the trial, I asked him how he had expected the conveyancers to make an application to RBZ without the money in their account, to which he created an impression of being ignorant on the process. In my view, the plaintiff was not being truthful because in his 10 September 2018 email to Juliet, he asked the conveyancers to instruct their bankers to make the necessary application to RBZ for the funds to be remitted to his bank account in South Africa. The plaintiff is not someone who is unsophisticated but an IT specialist reading towards a PHD. Surely, he could not have been thinking that the conveyancers would make an application to Stanbic Bank based on funds held in another person’s bank account at Nedbank. An application for remittance of funds is based on funds held in the applicant’s account. I find that the paper trail shows that the plaintiff appreciated that for the conveyancers to make this application, the money had to be deposited into their account. The plaintiff is now playing ignorance for self-serving purposes.

Even assuming that the plaintiff did not appreciate this fact, on 25 September 2018, he received the email from the conveyancers. That email confirmed receiving his sale proceeds from the defendant on 18 September 2018 and additionally sought his further instructions. If the money had been transferred outside his instructions as he wants us to believe, this email presented a perfect opportunity for the plaintiff to instruct the conveyancers to return the money to the defendant. Yet, he did not. Instead, he went ahead with that arrangement, and even requested for the conveyancers to handle the remittance of the funds, exchanging various correspondences with the conveyancers. Repeated correspondences from the conveyancers including the 2 November 2018 email notifying him the application to remit funds had been approved by RBZ; a letter dated 29 November 2018 confirming that they were holding the purchase price in their Trust account; and another letter dated 3 December 2018 asking him to provide them with a local bank account to enable them to transfer his amount held in their Trust spoke to the conveyancers having the sale proceeds in their Trust account. The plaintiff cannot now volte face and confess ignorance of the whereabouts of the sale proceeds. After issuing the instruction for the conveyancers to handle the transfer of the proceeds of sale, he could not have expected the defendants to do it any other way. If it had done that, that would have been a typical case of an agent going on a frolic of its own.

On the basis of the above,  even if the plaintiff had not grudgingly conceded that he instructed Juliet to transfer the proceeds of sale to the conveyancers, I would have still found that implicit in the plaintiff’s instruction to instruct the conveyancers to transfer the purchase price to his bank account in South Africa, was the instruction for the proceeds to be transferred back to the conveyancers, which instruction, upon its execution, the plaintiff acquiesced to by his subsequent conduct. In my view, the express authority to instruct the conveyancers to handle the transfer carried with it implied authority for the defendant to do all the necessary and usual means of executing that instruction: Clifford Harris (Rhodesia) v Todd 1955 SR 80 at 82, cited by Christie on p337.

It has been argued by the plaintiff’s counsel that the plaintiff was never furnished with the correspondence with the bank, attempts to transfer nor even the bank balances to confirm the existence of the funds. I fail to comprehend what the plaintiff seeks to achieve by this argument. This must be the height of disingenuity. There are several correspondences on record, including correspondence from Stanbic Bank, showing that the funds are held in Trust by the conveyancers. As far back as 3 December 2018, the conveyancers even asked for his local bank account so that the money could be transferred, he did not provide that. The conveyancers could not have been asking for the account details just for the thrill of it. The plaintiff cannot now turn around and argue that his money was stolen when repeated requests for provision of a local bank account were unheeded. It was only in 2021 that the plaintiff furnished a local foreign currency account. By that time, significant currency changes had occurred and the issue of the currency of the proceeds post those policy shifts remains to be ventilated.  In my view, this does not speak to his money having been stolen.

I have already alluded to the fact that an agent is obliged to follow all lawful and reasonable instructions of the principal, including further instructions, barring special circumstances to the contrary. In this case, it is common cause that the plaintiff issued an instruction that the conveyancers handle the transfer. This instruction came after the initial instruction for the plaintiff to identify a purchaser, introduce it to the plaintiff, draft the agreement of sale, receive the purchase price and remit it to the plaintiff. The evidence before this court shows that after the proceeds were received by the conveyancers, the plaintiff started effectively communicating with them on the transfer of the funds. Owing to the ensuing developments, the plaintiff cannot expect the defendant to remit the purchase price against the backdrop of a standing instruction for the conveyancers to do the same. I find that, the first instruction to remit the funds to the plaintiff was superseded by the latter instruction from the plaintiff himself for the defendant to instruct the conveyancers to handle the remittance. On the basis of the evidence placed before me, it presents itself clearly to me that there can be no meaningful argument that the defendant breached its mandate agreement by failing to remit the sale proceeds. I therefore find that the defendant did not breach its mandate.

When the plaintiff issued the subsequent instruction for the conveyancers to handle the transfer, the defendant duly obliged. Evidence placed before this court shows that the plaintiff clearly and unequivocally instructed the conveyancers to handle the transfer. The remittance of the purchase price was the final act the defendant was expected to perform to make execution of the mandate perfecta. But then, a fresh instruction came and was executed. It is my finding that by instructing the conveyancers to handle the transfer, the plaintiff took away from the defendant the obligation to remit the funds as initially agreed between the parties and consequently, this instruction from the plaintiff terminated the defendant’s mandate.

I find that consequently, the plaintiff’s instruction dispensed with the defendant’s obligation to remit the purchase price to him. The defendant, as an agent, complied with the plaintiff’s instruction as it is obliged by law to do. If anything, the plaintiff is now expecting the defendant to do the impossible. He specifically instructed the defendant to instruct the conveyancers to handle the remittance of the sale proceeds to him. That instruction stands. It has not been reversed. The plaintiff cannot expect the defendant to comply with an instruction for it to remit the sale proceeds to him when firstly, he changed that instruction midway and secondly, the defendant does not hold the plaintiff’s funds, but those funds are being held by the conveyancers in Trust following the plaintiff’s instructions.

In my judgment, the question of prejudice to the plaintiff can never be overemphasised. It is not even issue. The critical point however, that prejudice cannot be attributed to the defendant because as it stands, the defendant is not the one upon whom the obligation to remit the funds stands. I have earlier on in this judgment referred to several correspondences from the conveyancers confirming that they are holding the plaintiff’s money in their Trust account. I have not been referred to any evidence to show that the money was subsequently transferred to the defendant. I therefore find that the defendant does not hold any money on behalf of the plaintiff.

It is therefore, my finding that this is not an appropriate case for the court to declare that the defendant is indebted to the plaintiff. There is neither factual nor legal basis for such a declaration. In the result, the plaintiff’s main claim stands to be dismissed.

Having determined that no case has been made for a declaratory order, the determination of whether or not there is a foreign obligation becomes unnecessary.

WHETHER OR NOT THE DEFENDANT IS LIABLE TO PAY CONTRACTUAL DAMAGES IN THE SUM OF USD168 127.02 ARISING FROM THE INTENTIONAL BREACH OF THE AGENCY CONTRACT BETWEEN THE PARTIES

This is the plaintiff’s alternative claim. From the plaintiff’s claim and declaration, I deduce the plaintiff’s sticking issues to be firstly, the defendant’s failure to timeously remit to the plaintiff the proceeds of the sale before the advent of statutory instrument 33 of 2019 on the basis of which, it is common cause, contractual obligations valued in United States dollars immediately before 22 February 2019, were to be paid in RTGS dollars at parity or at a one-to-one rate and secondly, the defendant’s failure to cancel the agreement of sale. The other issues to do with the appointment of the conveyancers and the instruction for the conveyancers to handle the transfer have already been dealt with in this judgment and there is no need to repeat them.

In my analysis of the evidence placed on record, while the plaintiff sought to paint a picture that there was no immediate attempt to transfer the money, the email trail he produced reveals otherwise. Neither was he being truthful that he had only been advised in November 2018 that the RBZ policy changes took effect in the midst of the transaction because, on 27 August 2018, he was advised by the conveyancers that they had received the money and they wanted his banking details. That same day, Valerie received his letter of instruction instructing that the money be paid into the defendant’s account. It was accompanied by the ‘KYC’ form which now provided the plaintiff’s South African bank account details. These had not been furnished before. This letter was transmitted to the conveyancers on the plaintiff’s instructions.

Between 28 and 29 August 2018, the funds were received by the defendant and on 30 August 2018, the plaintiff was advised of the need to obtain RBZ approval. He was then given three options, one of which was for the conveyancers to apply to RBZ on his behalf for the remittance of the funds to his South African bank account. He chose that option. It is common cause that these options were being explored because of the liquidity challenges. In my judgment, the issue of the liquidity challenges and RBZ requirements were known by the plaintiff from at least 30 August 2018 and throughout the subsequent engagements between the parties.

In this court, there was never a challenge on the veracity of that position. I find it disingenuous for the plaintiff’s counsel to seek to challenge this evidence in his closing submissions. The purpose of closing submissions is known. The case of El Elion Investments (Pvt) Ltd v Auction City 2016 (1) ZLR 289 (S) is authority for the proposition that a closing submission made at the end of a trial on an issue not pleaded or canvassed in evidence does not constitute a pleading or evidence on that issue. The court in that matter made the important point that where the issue has to be pleaded, the comment on it in closing submissions does not cure the need for it to be pleaded and that closing submissions are not pleadings. Counsel cannot seek to belatedly cast aspersions on the insufficiency of evidence on the RBZ requirements which from the tenor of all the pleadings and his questions during the trial, appeared common cause. The plaintiff was advised several times to seek legal counsel to confirm what he was being advised firstly by the defendant and secondly by the conveyancers, but he did not see it prudent to do so.

In addition to my remarks above, I would still not find favour with the plaintiff’s argument in his closing submissions on this aspect for another reason. Section 24 of the Civil Evidence Act [Chapter 8:01] provides that:

‘24 Judicial notice

(1) A court shall take judicial notice of the following—

(a) the law of Zimbabwe; and

(b) decisions of the High Court or the Supreme Court, if reported or recorded in citable form; and

(c) any enactment published in or as a supplement to the Gazette; and

(d) any other matter whatsoever which, in terms of rules of court or any other enactment, the court is required to accept as correct or of which it is required to take judicial notice.

(2) Subsection (1) shall apply without prejudice to Part VII of the Interpretation Act [Chapter 1:01].

(3) A court may and, if the necessary information is supplied, shall take judicial notice of any fact which is not subject to reasonable dispute in that it is—

(a) generally known among reasonably informed people in Zimbabwe or within the area of jurisdiction of the court; or

(b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’

The requirement for Zimbabweans to seek the exchange control authority’s approval to remit foreign currency outside Zimbabwe for funds such as those in this case is a matter of law, the relevant provisions being encapsulated in s11 (1) and (2) of the Exchange Control Regulations, 1996. The defendant’s evidence that the need to seek approval was always there but then it was almost an internal process which would take 24 to 48 hrs stands uncontroverted.

Additionally, the challenges faced by this country in the run up to the currency policy shift in February 2019 is something that is not subject to reasonable dispute because it is something that is generally known among reasonably informed people in Zimbabwe. In fact, even the plaintiff acknowledged the ‘liquidity crisis in Zimbabwe’ in his response to Juliet’s email on 30 August 2018.  The court therefore takes judicial notice of this development in Zimbabwe and the ensuing interventions from the central bank during the relevant period.

The plaintiff’s counsel did not even seriously challenge the liquidity crisis; his line of questioning was mainly focused on the timing of advising the plaintiff of this development. On that score, I have no basis to disbelieve Juliet’s evidence that the rigorous requirements kicked in in the midst of the plaintiff’s transaction, and that she had not advised him anytime earlier than she did because she was not aware of the severity of the situation. Her experience of the depth of the challenge then was based on what she heard people saying. I also have no reason to doubt her testimony that even if she had advised the plaintiff earlier, the situation could not have been salvaged because by the time the new requirements set in, transfer had already gone through.

In the final analysis, it is my finding on a balance of probabilities that there is no basis for this court to find that the defendant failed to timeously remit the plaintiff’s money into his account up to the time the defendant was instructed to transfer the proceeds to the conveyancers which was done and the funds were received on 18 September 2018.

The second issue relates to the allegation that the defendant failed to cancel the agreement of sale. It is not in dispute that the defendant was not a party to the agreement of sale. The parties to the agreement of sale are the plaintiff as the seller and the purchaser. That the privilege to enforce a contract is on the contracting parties is trite.

In TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S) at p144D-E, the Supreme Court observed as follows:

“That conclusion of law renders both appellants strangers to the contract between the acquiring authority and the respondent. This brings us to the doctrine of privity of contract. That doctrine restricts the enforcement of contractual rights and remedies to the contracting parties, to the exclusion of third parties. Innocent Maja The Law of Contract in Zimbabwe at p 27 para 1.5.3 graphically explains the doctrine as follows:

“The doctrine of privity of contract provides that contractual remedies are enforceable only by or against parties to a contract, and not third parties, since contracts only create personal rights. According to Lilienthal, privity of contract is the general proposition that an agreement between A and B cannot be sued upon by C even though C would be benefited by its performance. Lilienthal further posts that privity of contract is premised upon the principle that rights founded on contract belong to the person who has stipulated them and that even the most express agreement of contracting parties would not confer any right of action on the contract upon one who is not a party to it.”

An argument has been made that because the defendant prepared the agreement of sale, it ought to have cancelled the contract. I am not aware of any law which gives a third party the right to enforce a contract simply because it drafted the contract. Drafting a contract does not make the drafter a party to the contract. The defendant remains a stranger to the agreement of sale. The right to cancel the agreement of sale arises ex contractu and there is no basis upon which the defendant, as a third party, could have sought to reverse the sale.  In that regard, the plaintiff’s case also fails on the alternative claim.

Before turning to the question of costs, I would like to briefly comment on how this case turned out. The circumstances of this case are most unfortunate. He may have his views, but there was absolutely no reason for the plaintiff to stick to his guns that he had appointed an agent to run around for him when, the same agent repeatedly advised him that there was need for him to personally follow up with RBZ. There can be no talk of the defendant leaving the plaintiff at sea in circumstances where efforts are made to salvage the situation but the plaintiff, for reasons best known to him, chose to spurn that advice, including legal counsel. In my judgment, this is a classic case of cutting the nose to spite the face. I have every reason to believe that when the defendant advised him to approach RBZ, it was not washing its hands off the case, but it was looking for ways to ensure the plaintiff did not totally lose out. Perhaps, had the plaintiff not adopted the hardline stance he did when he was repeatedly told to approach the RBZ to follow up the application, a stitch in time would have saved nine.

Turning to the issue of costs, the defendant has prayed for costs on a higher scale. The jurisprudence in this jurisdiction is that the courts will not lightly accede to a prayer for an award for costs on a legal practitioner and client scale except in exceptional circumstances. See for example, Kangai v Netone Cellular (Pvt) Ltd 2020 (1) ZLR 660 (H) and Borrowdale Country Club v Murandu 1987 (2) ZLR 77 (H). From the evidence on record, the plaintiff is clear on where his money is. With that full knowledge, he not only made a conscious decision to drag the defendant to court but was also dishonest in these proceedings in his endeavour to use the court to make the defendant pay for his own regrettable decisions. In my view, the plaintiff’s conduct was not only reckless and thoughtless but manifestly inappropriate. For these reasons, I am of the view that this is an appropriate case for the plaintiff to mulcted with costs on a punitive scale.

DISPOSITION

In the result, I make the following order:

The plaintiff’s claims, in the main and in the alternative, be and are hereby dismissed.

The plaintiff shall pay the defendant’s costs at a legal practitioner and client scale.

Mushure J: .................................................................

Chinwamurombe Legal Practice, plaintiff’s legal practitioners

Matsika Legal Practitioners, defendant’s legal practitioners