Flowermet Farming (Pvt) Ltd v Patson Kufa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/724/2016
HARARE, 23 SEPTEMBER 2016 &
18 NOVEMBER 2016
CASE NO LC/H/846/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/724/2016

HARARE, 23 SEPTEMBER 2016 &			         CASE NO LC/H/846/2015

18 NOVEMBER 2016

In the matter between

FLOWERMET FARMING (PVT) LTD					APPELLANT

Versus

PATSON KUFA								RESPONDENT

Before the Honourable Hove J

For the Appellant	N Moyo (Legal Practitioner)

For the Respondent    V Muza (Legal Practitioner)

HOVE J:

This is an appeal against a decision by an arbitrator.

The facts of the matter are that the appellant wrote to the respondent and made an offer to pay him $20 000-00. This written offer was made on 13 May 2015.

The respondent wrote back and stated that the monies should be paid into his CABS account.

On 20 May 2015 the appellant withdrew the offer in writing.

On 17 June 2015 the respondent wrote accepting the offer.

The appellant stated that the offer had been withdrawn and he had been notified so there no longer was an offer for him to accept.

This is the background to this dispute. The arbitrator found that there was a valid contract between the parties. That there had been an offer and also that there was acceptance and therefore there was a valid contract.

Before this court, the appellant argues that the respondent had made a counter offer by trying to get the appellant to change the bank that the money would be deposited into and further that the offer had been withdrawn before the respondent had accepted it.

The respondent on the other hand argues that there was a valid offer and acceptance and as such a valid contract. They further argue that the response to the effect that the money should be deposited in the CABS account was not a material variation to the terms of the offer.

The only valid consideration is whether or not the offer, had been accepted within a reasonable time.

The sole issue for the court to decide is whether or not there was a binding contract between the parties.

That there was a valid offer is not disputed. That an offer can be terminated upon lapse or the expiration of a fixed period is also trite. In casu, there was no fixed period but offer could in law have lapsed after a reasonable period.

This position is trite and RH Christie ïn the book The Law of Contract in South Africa 6th edition page 51 states as follows:

“Where the offerer has not specified a fixed time within which the offer is open for acceptance, it must be regarded as being open for a reasonable time, to be ascertained from the surrounding circumstances. In Dietrichsen v Dietrinchsen 1911 TPD 486, at 496 WSSELS J, drew this obviously necessary rule both from the development Roman Law and English Law.”

But this really is not the issue here. The issue is that when the respondent accepted the offer on 17 June 2015, was there a valid offer to accept?

I do not think so for two reasons:

Firstly, he had sought to vary the terms by writing to suggest that the payment be made into the CABS account.

In the case of Onon Investments (Pvt) td v Ujamaa Investments (Pvt) Ltd 1987 (1) ZLR 141 the Supreme Court stated that the offeree must accept the offer and not make a counter offer or a qualified acceptance as these may be taken as refusal.

This was a modification being made to the offer and at that stage there was no acceptance.

The offeror at that stage was well entitled to hold the view that the offer had not been accepted, that there was no binding contract. The offeror then withdrew the offer on 20 May 2015 when the offer was withdrawn.

Secondly, the offer was withdrawn before it was accepted on 20 May 2015. When the respondent sought to accept it in June 2015, it had been withdrawn, there was nothing to accept. This is factual. The respondent has not argued that when he accepted he was not aware that the offer had been withdrawn and no longer open for acceptance. He has not sought to argue that the withdrawal was a nullity. He simply ignored the fact that the offer had been withdrawn and no longer open for acceptance.

Whether or not there was a material counter offer or not, becomes immaterial once it is accepted that the offer was properly withdrawn before acceptance and this withdrawal was communicated. That becomes the end of the matter.

The arbitrator therefore misdirected himself in finding that there was a binding contract.

In the result, the appeal is upheld with each party bearing its own costs.

Coghlan, Welsh & Guest, appellant’s legal practitioners

Muza & Nyapadi, respondent’s legal practitioners