AC Controls (Private) Limited v Sable Chemical Industries Limited

### Preamble
Judgment No. SC 18/20 1
Civil Appeal No. SC 87/17
REPORTABLE (15)
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REPORTABLE     (15)

AC     CONTROLS     (PRIVATE)     LIMITED

v

SABLE     CHEMICAL     INDUSTRIES     LIMITED

SUPREME COURT OF ZIMBABWE

GARWE JA, GOWORA JA & GUVAVA JA

HARARE: MAY 14, 2018 & FEBRUARY 11, 2020

T. Zhuwarara, for the appellant

L. Uriri, for the respondent

GOWORA JA:	On 12 February 2013, the respondent issued a purchase order to the appellant for the supply by the latter of 2 x 12KV vacuum circuit breakers. Early in the morning on the following day, the respondent sent an email to the appellant instructing it to hold any further transactions on the order until further notice. A series of emails was exchanged by the parties, with the respondent insisting that the order be put on hold and that it had in fact cancelled the order. On the other hand, the appellant insisted that it had already placed an order with its overseas supplier and that it was proceeding with the order.

On 13 October 2013 the appellant delivered the goods described in the order at the respondent’s place of business. The respondent alleged that it had cancelled the order and accordingly refused to accept delivery consequent to which it invited the appellant to collect the circuit breakers from its premises. The appellant did not collect the circuit breakers. Instead, it demanded payment of the sum of USD 236 520.45 which was the invoiced amount for the goods. The respondent refused to pay.

As a consequence of the refusal to pay, on 27 January 2014, the appellant issued summons against the respondent claiming an amount of USD 236 520.45 being the cost of the circuit breakers, as well as interest a tempore morae and costs of suit. The matter proceeded to trial and on 8 February 2017, the High Court issued a judgment in terms of which it dismissed the appellant’s claim with costs. This appeal is against the dismissal of that claim.

The issues on which the matter proceeded to trial were the following-

Whether a valid agreement came into place between the plaintiff and the defendant;

Whether the agreement was cancelled by the defendant;

Whether delivery by the plaintiff was done in terms of the cancelled order; and

Whether the defendant was liable to the plaintiff for payment of USD 236 520.45.

As regards the first issue, the court a quo found that no valid agreement had come into place as between the appellant and the respondent. In relation to the second issue, the court a quo concluded that the respondent withdrew its offer to purchase circuit breakers from the appellant before the offer was accepted for the purpose of bringing into force a valid agreement. The court, as a consequence, held that no agreement had come into effect. The court a quo concluded as a result of that finding that there was no basis for determining issues three and four. It accordingly dismissed the claim with costs.

The appeal before the court is premised on four bases. The first is that the court misdirected itself when it found that no valid contract had come into effect between the parties. Secondly, the appellant impugns the court’s finding that the purchase order by the respondent did not constitute an acceptance of an offer by the appellant for the supply of circuit breakers, and contends that the respondent adduced evidence that confirmed that the purchase order constituted such acceptance. The court is also criticised in its finding that the respondent had withdrawn its offer before it could be accepted by the appellant. Lastly, it is contended that the court a quo was guilty of a misdirection in finding that there was no meeting of the minds between the parties when the respondent’s offer was followed by a request to put the order on hold.

Notwithstanding the above mentioned grounds, in his written submissions, counsel for the appellant contended that the sole issue for determination was whether or not there was a valid contract concluded between the parties and this is the stance taken before us. He approached the issue in question on the premise that the court a quo should have found that there had been a meeting of the minds between the parties.

In my view the approach taken by counsel in this matter is correct. This is the sole issue for determination as it resolves the dispute between the parties.

THE APPELLANT’S CASE AS ARGUED BEFORE THE COURT

In this matter, the appellant contends that, despite the finding by the court a quo, there was a meeting of the minds as evidenced by the following factors. An offer was made, the parties entered into negotiations and subsequent to that an agreement was reached based on a reduced purchase price. It is further contended that, in demonstrating its acceptance of the offer, the respondent sent a purchase order to the appellant, which purchase order captured the essence of what the parties had agreed to. In this regard, Mr Zhuwarara contended that the purchase order was communicated directly to the appellant and that the order contained all the essential elements of an agreement of sale. He suggested that the order was signed by four senior individuals representing the respondent, the price was readily ascertainable and to that effect there was consensus between the parties.

The appellant argued that the determining factor in this case was whether or not the respondent conducted itself in a manner that indicated that it had accepted the appellant’s offer. The appellant contended that, from the record and the admissions made by it, it was clear that the respondent, by its conduct, had accepted the appellant’s offer thus creating a binding contract. The argument went further and it was submitted that together with the purchase offer the respondent had requested a pro-forma invoice which was itself a clear indication that the respondent had realised its obligation to start making payments to the appellant. Ultimately, it was submitted that the circumstances of this case are such that the answer to this question must be positive and that it would constitute a gross misreading of the facts to find otherwise.

In addition, counsel for the appellant criticised the finding by the court a quo that there was no consensus reached by the parties. If there was no agreement, as found by the court a quo, what was it that the respondent sought to hold or stay in abeyance so the argument went. He also questioned the relevance of the gratitude expressed by the respondent in expediting the purchase order if there was no agreement reached between the parties.

THE CASE PRESENTED FOR THE RESPONDENT

The submissions by Mr Uriri, counsel for the respondent went as follows.

Contrary to the case made by the appellant, there was no contract. The offer by the appellant was in response to an enquiry sent out by the respondent to a number of suppliers. Further, having regard to the contents of the offer sent by the appellant to the respondent, the purchase order could not be an acceptance of such offer. He pointed to the difference in the number of items on both documents; viz in the offer the appellant quoted for three units, whereas in its order the respondent had made reference to two units. Further, the prices of the goods differed considerably with the respondent quoting a lower price than was on the offer document. To this end, he argued that where the purchase order differed from the offer there was need for the acceptance of the purchase order by the offeror. He described the respondent’s purchase order as a counter-offer which required acceptance by the appellant. In addition, if the counter-offer was a request for the provision of a pro-forma invoice which would enable the respondent to effect payment. He suggested that, until the respondent received the pro-forma invoice, there were outstanding issues regarding payment.

As regards the questions raised as to what was being placed on hold in the absence of an agreement, he submitted that what was being put on hold was the purchase order itself. He suggested that the request to hold the order in abeyance meant that the respondent required the appellant not to process the order. He then proceeded to argue that the counter-offer was then withdrawn before its acceptance by the appellant.

He concluded by submitting that there would have been no agreement in the absence of a material term of the contract relating to payment. There was a requirement for a payment of 60 percent of the purchase price by the respondent. The down payment of 60 percent would be the amount used for procurement of the items at issue from the foreign supplier. This term had not been agreed nor paid.

THE APPROACH BY THE HIGH COURT TO THE DISPUTE

In the absence of a written contract, the court has to have regard to the conduct of the parties in order to ascertain whether there was indeed a meeting of the minds as argued by the appellant.

The only issue which the parties appeared to have agreed upon was the reduced purchase price. The unresolved issues between the parties were the following-

Whether or not a deposit was required as stipulated in the quotation; or

whether payment of the purchase price was to be effected 60 days from date of invoice as proposed by the respondent;

It is common cause that on 17 January 2013 the respondent sent an enquiry on circuit breakers to the appellant as well as other suppliers. In response, on 18 January 2013 the appellant communicated with the respondent as follows:

“We would like to take this opportunity to thank you for your enquiry and we take pleasure in submitting our offer as indicated in the following section.”

The appellant then sets out a description of the circuit breakers and gives a quotation of USD 117 984, 19 per unit. It quotes USD 369 443,19 for a total of three units.

The proposed terms of payment on the offer are recorded as follows:

We propose

a) 30 percent down payment with order

b) Balance to be settled over 60 days. Credit terms can be considered on application.

That these were the terms offered to the respondent in the quotation sent by the appellant is not in dispute. On 12 February 2013, the respondent sent to the appellant a ‘purchase order’. It required two vacuum circuit breakers at a unit price of USD 102 834.96 each. The total price including VAT was USD 236 520.45. The due date on the order was 25 February 2013. Payment as proposed in the order was 60 days from date of invoice which should not be earlier than the date of delivery unless otherwise agreed in writing between the parties.

It is common cause between the parties that the appellant did not revert to the respondent on the purchase order. Instead what happened was that the day following the order, the respondent indicated that the order should be put on hold until further notice. The response by the appellant was that it had already placed an order with its overseas supplier and it was not in a position to cancel the same. It indicated through an email that the order had been packed and was ready for shipping by the time that respondent purported to cancel or place the order on hold.

The court a quo analysed the documents and the evidence and resolved the differences therein in the following manner:

“It is common cause between the parties that after giving the defendant a quotation the parties engaged each other in negotiations which resulted in the defendant securing a reduction in the price of the circuit breakers per unit and the parties appreciated that the defendant wanted the circuit breakers supplied as a matter of priority. It would appear that in the negotiations the parties did not resolve the issue of the down payment required. This is apparent from the fact that whereas the quotation proposes 30 percent payable with placement of the order and the balance within 60 days the purchase order referred to the purchase price of the circuit breakers as being payable within 60 days of invoicing or delivery. Besides, the quotation that the plaintiff gave to the defendant had the following as to validity-“This offer remains valid for a period of 30 days from this date and subject to confirmation thereafter.” Quite clearly, the negotiations did not themselves result in a contract as no evidence was led to suggest that other than the quotation and purchase order there was an agreement arrived at elsewhere on a different date.

As indicated herein above even if the plaintiff’s quotation were considered to be an offer as plaintiff called it the fact remains that the defendant did not accept it as such. In fact, by placing its purchase order containing a variation of terms and conditions stipulated in the plaintiff’s quotation it means that the defendant did not accept such offer and made a counter offer to the plaintiff instead. Such counter offer had to be accepted by the plaintiff for a contract into existence.”

The court proceeded to find that the respondent’s counter offer had not been accepted by the appellant as the appellant failed to communicate its acceptance. The court as a result concluded that there was no meeting of the minds and, that therefore, as a consequence, no valid contract had come into existence.

I am unable to fault the reasoning by the learned judge.

CONSENSUS AD IDEM AS A PRINCIPLE

The appellant has referred the court to very relevant and pertinent authorities both within this jurisdiction and others including South Africa in which the applicable principles on the question as to when parties can be said to be ad idem in relation to the formation and validity of a contract have been set out or discussed. The first is Smith v Hughes (1871) LR 6 QB 597 wherein BLACKBURN J stated:

“I apprehend that if one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, there is no contract, unless the circumstances are such as to preclude one of the parties from denying that he has agreed to the terms of the other.”

Relying on the above dicta, it is contended by the appellant that the parties herein had reached consensus, and that the emails exchanged between them point to this fact.

What constitutes a meeting of the minds in a contract was considered by this Court in Telecontract (Pvt) Ltd t/a Telco v Sporrow Haulier (Pvt) Ltd t/a J &J Transport SC 41/17. At p 7 of the cyclostyled judgment this Court had this to say:

“I am aware that the test for the meeting of the parties’ minds should involve the effect of their conduct on whether or not a contract came into existence. Consensus ad idem does not only take into account the subjective mental state of the parties, which has been discussed above. It also takes into consideration the actions of the parties to determine whether or not there was consensus ad idem.  BLACKBURN J in Smith v Hughes (1871) LR 6 QB 597, set out his classic statement on the objective interpretation of people's conduct when entering into a contract. Rejecting that one should merely look at what people subjectively intended, he said:

“If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms.””

In their book, Contract, General Principles 4ed, the learned authors, Van der Merwe, Van Huyssteen, Reinecke and Lubbe have a most instructive passage on this principle. They state the following:

“As a general rule, our law accepts that a contract is concluded when and where consensus is reached, usually at the place where and at the moment when a person who has made an offer (the offeror) is informed that it has been accepted by a person legally entitled to do so (the offeree). This so called information theory rests on the principle that the primary basis of contractual liability is the actual agreement between the parties to the transaction. Consensus is the essence of the legal act and should in principle mark the cut-off point between the stages of negotiation and obligation.”

It is quite apparent from the above authorities that consensus ad idem is a sine qua non to the formation of a valid contract. In legal analysis, a contract comes into being when one party accepts an offer made by the other, or when one party makes up all that was lacking for the agreement to be complete by responding in a way that the law recognises as effective.

WHETHER OR NOT THE HIGH COURT WAS CORRECT IN ITS FINDING

It is a trite principle in the law of contract that acceptance is the express or implied indication by the offeree of his intention to be contractually bound in terms of an offer made to him. The following essentials must be present in the acceptance. It must be unequivocal and in terms of the offer. It must be made in the manner, if any, prescribed by the offeror and it must be made during the lifetime of the offer.

The court a quo found as a fact that, the respondent, instead of accepting the offer as presented in the quotation, made a counter–offer. A counter offer constitutes a rejection of the initial offer. It is therefore open for rejection or acceptance by the offeror. In A.C.C. Bio Café v Raad van Kuratore van Warmbadplase 1957(4) SA 183, at 186-7 the following is said:

“As I read the passage in Williston, it seems clear that the learned author does not accept the proposition as being a true proposition of law; he merely says that this distinction is something that has been suggested, and he refers to a single case in which something of that sort has been held. I shall refer to the case in a moment. But Williston continues:

“It may be asked if one who is offered a contract of employment can reply, ‘I accept your offer and demand that my work shall not exceed two hours a day’, and thereafter effectively assert that there is a binding contract. In other words, can an acceptance be valid if it is accompanied by a repudiation of more of the legal consequences of the supposed contract? It seems clear that, if before a contract is finally concluded the parties become aware that they are existing on different interpretations of their duties thereunder no contract will arise.””

In this case, due to the absence of a written contract, the court has to have regard to the e-mails exchanged by the parties in order to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      ascertain whether the parties reached agreement, what they agreed upon and if, consequent upon such agreement, a valid contract, as contended by the appellant, actually came into being.  The series of e-mails were exchanged from 12 February 2013 to 14 February 2013. The first, emanating from the respondent and sent at 3:37 pm on 12 February reads;

“Please find attached order, assist with a pro-forma invoice with banking details for payment.”

The next, again emanating from the respondent and dated 13 February and sent at 8:35am on 13 February reads:

“We confirm having sent the above attached order to yourselves. However, could you please put on hold actioning/processing of that order until further notice from ourselves.”

The response from the appellant sent at 9:24am on 14 February reads:

“The first communication we got was from Simiti. Unfortunately, Mr Kasheshe was not in office yesterday. He will be coming back tomorrow. By the time we received the communication I had already done all the paperwork. Our supplier has already confirmed that the breakers were crated yesterday and now ready for shipment.” (sic)

The respondent, not content to accept the response from the appellant, responded:

“Going by what you are saying, I think we can really appreciate that you had executed the order expeditiously. Kindly advise your supplier to hold on until further notice. Remember that we still have to pay the 60 percent (or negotiable) down payment in order for you to start processing that order.

Unfortunately, we still stand by our position that you put the order on hold, of which we expect you to kindly observe with due respect. We shall be able to revert to you during the course of next week.”

The response by the appellant went as follows:

“With all due respect sir, we acted swiftly because of the urgency that was stressed in the meetings held at our office. Hence the minute we received the order we actioned it.”

Apart from contending that the parties were ad idem, the appellant has not pointed to any facts that would sustain this submission.

Two witnesses were called to testify on behalf of the appellant. The evidence adduced before the court a quo on behalf of the appellant is testimony to the fact that there was no agreement on pertinent terms on the contract. Under cross examination, Miss Mukambinde stated that the respondent had submitted to the appellant a purchase order whose terms and conditions superseded the terms and conditions contained in the quotation in terms of which the offer was made. She went on to say that the respondent had said that it would make payment 60 days after delivery and that the appellant had accepted this.

On the other hand, Mukaratigwa, the second witness called by the appellant, who was also its accounting officer, confirmed that in the purchase order, the respondent rejected the proposal that it pays 30 percent deposit before the order could be processed. Instead the respondent proposed that payment of the purchase be effected 60 days after delivery. The parties were not and could not be said to have been ad idem, or to put it in simple terms, of the same mind. Clearly, going by what Mukaratigwa understood from the purchase order, the respondent had proposed different terms to the contract. That this constituted a counter-offer which the appellant had to accept and communicate its acceptance to the respondent is the settled legal position. No such acceptance was conveyed to the respondent.

The appellant alleged the existence of a valid contract. It however failed to adduce evidence to establish the existence of such a contract. The onus to do so lay upon the appellant. That this is the law was stated clearly by ZIYAMBI JA in Delta Beverages (Pvt) Ltd v Murandu SC 38/15, wherein she said the following:

“Parties are expected to argue their case so as to persuade the court to see merit, if any, in the arguments advanced for them. They are not expected to make bald unsubstantiated averments and leave it to the court to make of them what it can.”

Those remarks are apposite in this case. There were negotiations which were contemplated on questions relating to the payment of a deposit and the amount which had to be paid for the order to be processed. In addition, the time of payment had not been agreed. It also appeared that the appellant was required to issue a pro-forma invoice reflecting its acceptance of the counter-offer. No invoice was ever generated.

The clear attitude emerging from the communications from the respondent reflects an uncertain position. What emerges from the emails is that there were issues upon which the parties had not reached consensus.  It is also clear from the record that the respondent impliedly rejected the appellant’s offer in the form of the counter-offer upon receipt of the quotation. By implication this means that the original offer made by the appellant lapsed because of the counter-offer. There was no response to the counter-offer leading to the conclusion by the court a quo that there was no consensus ad idem between the parties. The learned authors, Peter and Michelle Havenga, General Principles of Commercial Law, state:

“If the offeree does not accept the offer exactly as made but makes a counter-offer, the offeree by implication rejects the offer and the offer is extinguished. The counter-offer is also the making of a new offer.”

This is what transpired in this case. The respondent counter-offered and offered a reduced price amongst other terms. The appellant chose not to respond thereto. Agreement is the essence of a contract, thus there must be a meeting of the minds. The mere fact that shortly after the parties had engaged each other in negotiations they were unable to agree the terms of the alleged agreement is evidence of the fact that consensus ad idem was wholly lacking.

In my view, the conclusion by the learned judge in the court a quo that no valid contract came into existence cannot be assailed.

The appellant appears oblivious to the legal effect of the counter offer made by the respondent, and an illustration of this misapprehension is the contention by the appellant that the purchase order sent by the respondent was an acceptance of the initial offer by the appellant. The purchase order cannot under any circumstances be described as an acceptance.

The remarks by WESSELS, J.A., in South African Railways & Harbours v National Bank of South Africa Ltd 1924 AD 704 are apposite. At pp 715 – 716 the learned judge of appeal said:

“The law does not concern itself with the working of the minds of parties to a contract, but with the external manifestation of their minds. Even therefore if from a philosophical standpoint the minds of the parties do not meet, yet, if by their acts their minds seem to have met, the law will, where fraud is not alleged, look to their acts and assume that their minds did meet and that they contracted in accordance with what the parties purport to accept as a record of their agreement. This is the only practical way in which courts of law can determine the terms of a contract”.

The nub of the dispute was whether or not there was a valid contract between the parties, the determination of which was predicated on a finding as to whether or not the parties were ad idem. From the correspondence exchanged between the parties it is evident that they never reached an agreement as the respondent kept insisting that the order be placed on hold. The appellant insisted on the performance by itself. The actions by the parties in this instance do not by any stretch of the imagination show a meeting of the minds between them. It is against this background that the court a quo came to the conclusion that there was no valid contract. It is only proper that I make reference to the dicta in Joubert v Enslin 1910 AD 6 to the following effect:

“Now, throughout the whole of the conversation, which is relied upon as proving ratification by the defendant, and the subsequent telegraphic correspondence, I am unable to discover any consent to the terms of the contract which the plaintiff now seeks to enforce.

There can be no consent [to the terms of the proposed contract] where the minds of the parties do not meet, or, as some writers express it, where there is no consensus ad idem or it was wholly wanting. The price was fixed at BP 3 550, but both parties considered it to be a material question whether the price should be paid at once or on transfer, or in future instalments, they never came to an agreement on that question.

It would have been quite consistent with the terms of the document for the parties to adopt any of these terms of payment, but if it were otherwise, and the document meant that the only possible mode of payment there-under was cash on transfer, then it is perfectly clear that the defendant never ratified it.  If, on the other hand, the terms of the document were such that the grant could be ratified, subject to terms of payment being agreed upon, then it is perfectly clear that such terms were never agreed upon. In either case there could be no concluded contract of sale between the parties.”

In any event as argued by Mr Uriri, the finding on whether or not a contract came into being is a finding of fact. This finding was arrived after the court a quo found that Mukaratigwa’s evidence could not be believed. An appeal court cannot upset a finding of credibility on a witness unless it is found that the finding by the court a quo was irrational. The principle on when and under what circumstances an appeal court can interfere in the factual findings made by a trial court was laid out in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664(S). At 670C-G, this Court said the following:

“The general rule of law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived as such a conclusion: Bitcoin v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education & Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671 E-H; CCSU v Min for the Civil Service supra at 951 A-B; PF-ZAPU v Min of Justice (2) 1985 (1) ZLR 305 (S) at 326E-G.

I wish to draw particular attention to the following remarks by LORD DIPLOCK in the CCSU case supra that: -

“Whether a decision falls within the category of irrationality is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court’s exercise of this role resort I think is today no longer needed to VISCOUNT RADCLIFFE’S ingenious explanation in Edwards (Inspector of Taxes) v Bairstow [1953] 3 All ER 48, [1956] AC 14 of irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground upon which a decision may be attacked by judicial review.””

The grounds upon which the appeal is premised have not alleged irrationality on the part of the lower court in its treatment of the evidence of the respective witnesses. There is no suggestion on the part of the appellant that the factual findings themselves are irrational in any way or unreasonable as submitted by Mr Uriri. In short, the appellant has not laid out a basis upon which this Court may interfere with the factual findings of the High Court. In addition, the appeal has also not met the criteria set out in Hama’s case (supra) justifying interference by this Court with the factual findings made by the court a quo. It follows as a result that this Court has no business enquiring into those factual findings.

I turn next to the finding by the court a quo that the respondent placed the order on hold before the counter offer could be accepted by the appellant.

Although contending that the request by the respondent to place the order on hold had come after the appellant had communicated with its supplier to process the consignment, the appellant was not able before the court a quo, to adduce any evidence in proof thereof. It was the further finding by that court that it was evident that the appellant could not name the supplier concerned, where the supplier was located nor could it prove that by the time the respondent indicated that the order be placed on hold any payment had been made by it. This is a critical consideration especially as the respondent had not made any payment as proposed by the appellant in the offer.

The court a quo disbelieved Mukaratigwa on this aspect. The learned judge pointed to the absence of any correspondence between the appellant and the supplier. This was particularly in view of the fact that the appellant’s witness had said that by the time the call placing the order on hold was received the order had been crated ready for shipping to Zimbabwe. It is not in dispute that the phone call was made early in the morning less than a day after the order was placed. The court also found it hard to believe that the plaintiff would have procured the circuit breakers from an overseas supplier to benefit a client without a down payment from that same client whose financial position the appellant itself knew to be precarious.

The court a quo also analysed the evidence of the appellant’s witnesses regarding the payment to the supplier and the time frames within which this was supposed to have been done. The court found that the evidence as presented could not be credible given the time differences between Japan where the supplier was operating from and Zimbabwe.

DISPOSITION

In the absence of any misdirection on the part of the court a quo as regards the findings of fact it made, this Court cannot set aside those findings. In any event, the facts as found by the court a quo support the position of the respondent and not the appellant. The only issue upon which the appellant sought to argue its case lacks merit and must be dismissed.

Accordingly, the appeal is dismissed with costs.

GARWE JA: 				I agree

GUVAVA JA:			I agree

Tamuka Moyo Attorney, appellant’s legal practitioners

Wilmot & Bennet, respondent’s legal practitioners