Court name
Supreme Court of Zimbabwe
Case number
SC 45 of 2004
Civil Appeal 425 of 2002

Ntabeni Conservancy v Kazombe and Others (25/02) (SC 45 of 2004, Civil Appeal 425 of 2002) [2004] ZWSC 45 (06 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 45

















Judgment No. SC 45/04



Civil Appeal No. 425/02












NTABENI CONSERVANCY v






(1) E D KAZOMBE (2) THE
GOLDEN EAGLE INVESTMENTS (PRIVATE) LIMITED (3) WILDLIFE
MANAGEMENT SERVICES INTERNATIONAL
(PRIVATE) LIMITED












SUPREME
COURT OF ZIMBABWE


ZIYAMBI
JA, MALABA JA & GWAUNZA JA


HARARE,
JUNE 29 & SEPTEMBER 7, 2004











J
B Colegrave
, for the
appellant





E
T Matinenga
, for the
respondents









ZIYAMBI
JA: This is an appeal from a judgment of the High Court discharging
a provisional order issued by that court on 25 March
2002. The
provisional order was expressed in the following terms:







‘TERMS OF ORDER MADE’











“That you show cause to this
Honourable Court why a final order should not be made in the
following terms:-






1. That the agreement entered
into between the Applicant and the 1st and 2nd respondents on the
15th January 2001 is hereby cancelled.







2. That the Applicant or its
authorized agent is entitled to the possession of all its Sable
Antelope at 3
rd
Respondent’s premises in Norton and (to) move them to such facility
as it, in its absolute discretion, deems fit.







3. That the 1st and 2nd
Respondents, jointly and severally, the one paying the other to be
absolved, pay the Applicant’s costs.










INTERIM RELIEF GRANTED









That
pending determination of this matter, the applicant is granted the
following relief:






1. The 1st and 2nd Respondents
are hereby directed not to issue any instructions to the 3rd
respondent, or any other party, for the
movement of any of the Sable
Antelope held by 3
rd
Respondent.







2. The 1st,
2
nd
and 3
rd
Respondents are hereby restrained from selling, moving or otherwise
dealing with the Sable Antelope held by 3rd Respondent.”














The relevant facts as they appear
from the record are as follows:






The appellant is a universitas,
being an association of landowners in the Chinhoyi district. The
first respondent is the Chairman of the Tourism and Wildlife
Advisory
Council which carries on business from 30 Golden Stairs Road from
which address the first respondent also carries on business
on his
own account through the second respondent of which he is a director.







In December 2000, the members of
the appellant decided to capture and sell some of the sable antelope
and other animals on the conservancy.
The members mandated their
chairman, Mr Rory Martin Hensman (‘Hensman’) to arrange for the
capture and sale of sable antelope,
livingstone eland, tsessebe,
bushbuck and reedbuck ‘at sustainable offtake levels’.
Thereafter, Hensman approached one Marthinus
Willem de Jager (‘de
Jager’) a South African citizen and resident who agreed to purchase
each sable for a purchase consideration
of Z$ 400 000.00. Hensman
then negotiated with Kazombe to whom he was referred as being ‘a
reliable person’ and one who was
able to obtain the necessary
permits. He concluded a verbal agreement with Kazombe in terms of
which Kazombe was to receive a
10% commission on the sale of each
animal. This would equate to Z$4 000 000.00 for every 100 sable
antelope sold. In return,
Kazombe was to arrange for the relevant
capture and movement permits (‘the permits’).







In January 2001 Kazombe advised
Hensman that he was having difficulty in obtaining the permits. He
advised that if Hensman signed
the agreement attached to the papers
as Annexure ‘B’, he would be able to negotiate with the
Department of National Parks and
Wild Life Management and obtain the
permits. He suggested a figure of Z$55 000 per animal. According
to Hensman, it was never
intended that Annexure ‘B’ would be
acted upon by the parties as it was concluded solely to facilitate
the acquisition of the
permits for the capture and movement of the
animals.







In January 2002, Kazombe advised
that he had obtained the permits and had requested the third
respondent represented by one Howard
Hunter (Hunter) to proceed with
the sale and capture of the antelope. So it came about that between
28 January 2002 and 11 February
2002, the appellant permitted the
capture of 137 sable antelope. Hensman arranged for the veterinary
movement permits in respect
of the animals and they were translocated
to the 3
rd
respondent’s premises at Somerby Bomas, Saffron Walden Road,
Norton, where they have since been kept in quarantine.







On 5 March 2002, Hunter
telephoned Hensman to say that he had been instructed by Kazombe to
make the sable antelope ready for immediate
transportation to South
Africa. In answer to a query by Hensman, he responded that Kazombe
had claimed that the sable antelope
were his to do with as he
pleased.




Hunter
therefore, upon the instructions from Kazombe, commenced the process
known as ‘bleeding’. By this process the sable
antelope are
darted, blood samples are taken and the animals are then
resuscitated. The blood samples are then sent to South Africa
for
testing. This is to ensure that the animals are free from diseases
such as foot and mouth.







Meanwhile, the sable antelope are
in the care of the appellant who continues to supply food for them.
There is some dispute as to
whether the animals are showing signs of
stress from being kept in a confined space.







It was on the above facts that
the High Court, on 25 March, 2002 granted the provisional order set
out above.







The respondents contended before
the court
a quo:



(a) that the agreement Annexure B
was the only agreement between the parties;



(b) that there was no verbal
agreement as deposed to by Hensman; and



(c) that the issue of the
permits was a condition precedent of the agreement of sale which
condition was fulfilled when Kazombe obtained
the permits.







Accordingly, so it was argued,
the animals belonged to Kazombe and he had seventy (70) days from the
date of delivery to pay for them
which seventy (70) days had not
elapsed at the time he deposed to the opposing affidavit. As to the
feeding of the animals, the
appellant of his own accord had offered
to feed them as there was a ready supply of feed available to the
appellant. These submissions
found favour with the court
a
quo
.







Annexed to the respondents’
opposing affidavit and without any explanation for its inclusion in
the opposing papers, was a letter
the contents of which are as
follows:






P O Box 17


ELLISRAS


O555






To
Whom It May Concern



My agreement concerning the Sable
with the Conservancy is as follows: I pay the Conservancy R24000,00
per Sable Groce. All the
costs in Zimbabwe on the Zimbabwean side
would come from this amount. All the costs on the South African
side would be carried
by myself.






I
hope that you would find that in order.









M W De Jager


2002-04-12










According to Hensman, the minimum
price of $400 000.00 is based on the then Z$: SAR “blend exchange
rate” of 16:1 which was quoted
to him by the appellant’s bank.







The gravamen of this appeal is
that the learned judge in the court
a
quo
erred in finding
that the written agreement was not a sham and was therefore binding
on the parties.







At
the hearing before us, Mr
Colegrave,
who appeared for the appellant, applied for an amendment to the
provisional order sought and obtained by the appellant on 25 March
2002 in paragraph 1 to read;







“the agreement entered into
between the applicant and the first and second respondents on 15
January 2001 is declared to be of no force
or effect.”









A
ruling was deferred to await the decision of this Court on the
outcome of the appeal.









I turn now to consider the
merits of the appeal.



The letter from de Jager set out
above confirms that the appellant had agreed to sell him sable
antelope at a price of ZAR 24 000.
The appellant

confirms this and
says that the price in Rand equated at the time to Z$400 000.00.
Although no explanation is given by the respondents
for the
attachment of the letter to their opposing affidavit, it does assist
the appellant in that it gives an indication as to the
price at which
the appellant was prepared to sell the sable antelope in December
2000. The question immediately arises as to why
on 15 January 2001,
less than a month later, the appellant would then agree to sell the
same animals at Z$55 000.00. It seems
to me that the explanation
lies in the averment by the appellant that this agreement was never
intended to be binding but was meant
to be an expedient designed to
assist Kazombe in obtaining the permits. The learned judge in the
court
a
quo
did not deal fully with that aspect of the matter. At page 53 of
the record she said:







“It is significant in my view
to note that the letter is dated 12 April 2002 which would suggest
that it was written after this application
was lodged in order to
confirm that the writer thereof was willing to buy animals from the
applicant.”







What the learned judge missed was
that that letter confirmed the appellant’s averment that he
intended to sell the sable antelope
to de Jager for $400 000.00 which
was the equivalent of the ZAR 24000 quoted in the letter. With a
sale figure of $400 000 in mind,
it would appear odd, to say the very
least, that the appellant would then agree to sell the sable antelope
at the grossly reduced
price of Z$55 000.00.







It was submitted by Mr Colegrave
that the probabilities favour the appellant’s version of the facts.
I agree with that submission. All that the parties did is
consistent with the agency agreement averred by the appellant.






It
can equally be said that all that Kazombe has been shown to have done
was in furtherance of his position as an agent of the appellant.

Thus Kazombe, having been assured that he would earn a 10% commission
on each animal sold, would have arranged for the capture
of as many
sable antelope as possible. That would explain why the number of
animals or their description is not contained in the
agreement.
Indeed, Kazombe did not deny, in his opposing affidavit, the
appellant’s averment that he (Kazombe) asked Hensman
to sign the
agreement in order to facilitate the acquisition of the permits and
suggested the price of $55 000. Having obtained
the permits,
Kazombe arranged for the capture of the animals and the appellant
allowed it and continued to feed and care for the
animals while in
captivity.







The court a
quo
was attracted by
the agreement and found that its detailed nature lent support to the
respondents’ case. However, as submitted
by Mr
Colegrave,
the agreement has the appearance of being a
pro
forma
agreement which
was used before in some other connection. It does not have the
appearance of having been drawn up to meet the requirements
of this
particular case. Thus, in terms of clause 4 of the agreement,
delivery was to be effected by pointing out the animals to
the
purchaser by the seller. Firstly there is no evidence that this was
done and secondly, in a conservancy of 25 farms described
by the
court
a quo
as ‘vast’, it seems to me that pointing out sable roaming among
other animals in such a vast area could prove to be no mean task.







Clause 6 relates to documents of
identification and pedigree which were to be furnished to the
purchaser by the seller. Again as
pointed out by the appellant,
this does not seem applicable in the sale of sable antelope. In any
event, the respondent did not
enlighten the court as to whether the
question of pedigree was relevant with reference to the sale of the
sable antelope.







In terms of Clause 2, the
property sold was the wildlife described in the ‘schedule hereto’.
No schedule was attached. It
is trite that the merchandise must
be clearly identified in the contract of sale. The respondents’
contention that -





“it
was the common intention of the parties that I would buy and take
delivery of the 137 animals which have already been delivered
to me
and are in my possession”,







misses the point that the
merchandise must be identifiable at the time of the conclusion of the
agreement. At the time of the signature
of the agreement, no
reasonable person reading the agreement would have been able to say
what animals were being referred to in the
agreement. The failure
to identify the merchandise in the agreement was fatal thereto and
rendered the agreement void. See
The
Principles of South African Law

by Wille 8
th
edition at p 529.







In my view the balance of
probabilities favoured the appellant and the provisional order ought
to have been confirmed.







Accordingly the appeal is upheld
with costs. The order of the court
a
quo
is set aside and
substituted as follows:







The provisional order is
confirmed save that paragraph 1 of the final order is amended to read
as follows:







“That the agreement entered
into between the applicant and the first and second respondents on 15
January 2001 is hereby declared to
be of no force or effect.”
















MALABA
JA: I agree.












GWAUNZA JA: I agree.













Stumbles & Rowe,
appellant’s legal practitioners


Kantor
& Immerman
,
respondents’ legal practitioners