CBZ Bank Limited v E.C.R. Mordt (Private) Limited & 4 Ors

### Preamble
1
HH 361 - 25
HCH 824/25
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CBZ BANK LIMITED

versus

E.C.R. MORDT (PRIVATE) LIMITED (1)

and

REAPERS (PRIVATE) LIMITED (2)

and

BASIL SIMON EMMANUEL NYABADZA (3)

and

MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE AND RURAL RESETTLEMENT N.O. (4)

and

REGISTRAR OF DEEDS (5)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE, 27 May 2025 & 19 June 2025

Opposed Application

T. S. Manjengwah, for the applicant

R. T. Muzonzini, for the 1st to 3rd respondents

W. R. Jaure, for the 4th respondent

No appearance for the 5th respondent

DEMBURE J:

[1]	This is a court application to amend pleadings. The applicant approached the court seeking to amend its pleadings filed in Case No. HCH 4423/20, namely the plea and claim in reconvention or counterclaim. It also sought to amend the joint pre-trial conference minute. The applicant seeks the following order:

“1. 	Leave of the Court is granted for the Applicant to amend its pleadings in Case number HCH4423/20 in terms of the Notice of Amendment of Pleadings dated 22 January 2025.

2. 	Applicant shall deliver the amended pleadings within ten (10) days of the Order.

3. 	The Respondents are authorized to make consequential adjustments to their pleadings affected by the amendment within ten (10) days of service of the amended pleadings.

3.	Costs of the application be in the main cause.”

FACTUAL BACKGROUND

[2]	The applicant, CBZ Bank Limited, is a duly registered and licensed commercial bank in Zimbabwe. The first respondent is E.C.R. Mordt (Private) Limited, a company registered in accordance with the laws of Zimbabwe. The second respondent is Reapers (Private) Limited, also a company registered in accordance with the laws of Zimbabwe. The third respondent is Basil Simon Emmanuel Nyabadza, a Zimbabwean male adult who is a major shareholder and director of the first and second respondents. The fourth respondent is the Minister of Lands, Agriculture, Water, Climate and Rural Resettlement, who is cited in his official capacity. The fifth respondent is the Registrar of Deeds.

[3]	The facts are largely common cause. On 18 August 2020, the first to third respondents issued summons against the applicant (as the first defendant), the fourth and fifth respondents (as the second and third defendants respectively) under Case No. HCH 4423/20. The claim for the first to third respondents, as the plaintiffs therein, is for:

“1.	Cancellation of an agreement of sale of an immovable property known as the remainder of Rocking Stone measuring 891,3761 situate in the district of Makoni (the property) into by the 1st plaintiff and the 1st defendant on 16 September 2013 on the basis of the parties’ common mistake that the property was privately owned.

2.	The cancellation of the subsequent deed of transfer number 45/2014 on the basis that it is a nullity as the property had been acquired by the Government of Zimbabwe in terms of the Constitutional Amendment Number 17 of 2005.

3.	Cancellation of the lease agreement of 29th of March 2017 entered between the 3rd plaintiff and the 1st defendant on the basis that it was a nullity.

4.	Cancellation of the agreement of sale of the property of 8th of August 2018 between the 2nd plaintiff and the 1st defendant therein on the basis that it was also a nullity.

5. 	Costs of suit.”

[4]	The applicant, as the first defendant in the action, entered an appearance to defend. On 30 September 2020, it filed its plea and counterclaim. The second and third defendants (the fourth and fifth respondents herein) did not contest the plaintiffs’ claim. The parties subsequently filed their pre-trial conference papers.

[5]	On 29 August 2024, at a pre-trial conference held before Phillips J, the matter was referred to trial. The issues for trial are as follows:

“1.	Whether or not the agreement of sale entered into by 1st Plaintiff and 1st Defendant on the 16th of September 2013 and the resultant agreements and acts are a nullity.

2. 	Whether or not 2nd Defendant suffered damages, if so, in what amount.

3.	Whether or not 1st – 3rd Plaintiff[s] [are] liable jointly and severally for damages suffered by the 2nd Defendant.

4. 	Which party should bear costs of suit and at what scale.”

[6]	On 22 January 2025, the applicant filed and served a notice of intention to amend its pleadings upon the respondents. The applicant seeks to amend its plea, counter-claim and the joint pre-trial conference minute. The plaintiffs therein (the first to third respondents) objected to the proposed amendment on the grounds that it seeks to alter the original plea, and as a result, they will be embarrassed in the prosecution of their claim. They also contended that the amendment seeks to introduce new issues, and if the amendment is granted, it will cause injustice and prejudice to the plaintiffs, which cannot be compensated by an order for costs. The plaintiffs further stated that this was a delaying tactic by the first defendant, which amounts to an abuse of court process. They argued that the inordinate delay of five years in seeking the amendment shows that the amendment is sought in bad faith. Further, they also averred that the amendment seeks to alter the nature of the suit, foundation of the case, the cause of action and the relief thereto.

[7]	On 24 February 2025, the applicant filed this application for leave to amend its pleadings. The applicant averred that the question that the court has to determine in the main action is whether the alleged acquisition by the fourth respondent of the Remainder of Rocking Stone Farm (“the property or farm”) would nullify the subsequent sale and transfer to the applicant. It believes that in order to decide that issue, it is necessary that the whole process of the above be interrogated, and the amendments seek to achieve that.

[8]	The applicant further pleaded that the proposed amendments are necessary as they will allow the court to ventilate the real issues between the parties. It further stated that it seeks to amend para 2 of its plea to allow the parties to explore what had happened at the time of the alleged acquisition. The applicant further averred that the proposed amendment of the plea seeks to explore the role played by the fourth respondent in the disposal of shares in the property-owning company in 2000/2003 and the subsequent disposal of the property to the applicant by the respondent in 2013. The applicant also submits that the proposed amendments to para 9 of the plea are necessary to clarify the calculation of the loss by the applicant if the relief sought in the main action is granted.

[9]	The applicant further asserted that the amendment provides a clearer basis for the quantum of damages being sought by the applicant in its conditional counterclaim. The proposed amendment to para 9 of the claim in reconvention simply provides the current valuation of the farm as the possible compensation value for the applicant’s loss if the main action is to be granted. The applicant further stated that the proposed additions of para(s) 10 and 11 of the plea would follow naturally from the respective clarifications in para 9. Further, the proposed amendments to the pre-trial conference minute correct the patent error regarding reference to the parties and their culpability in the counterclaim. The applicant submitted that the respondents do not suffer any prejudice that cannot be cured with an order of costs if the amendments are allowed.

[10]	With regards to the reasons why the amendment is being sought now, the applicant explained that when the issue of acquisition arose, the applicant was awaiting feedback from the fourth respondent on the formalities to be undertaken by it. The applicant averred that the other reason was that when the fourth respondent was joined to the main proceedings, it was expecting it to weigh in by filing pleadings which clarified the position above. The applicant believed that the fourth respondent would be best placed to explain what transpired before any declaration of the effects of its actions is made. It argued that the amendments cure the position between the applicant and the fourth respondent. The amendment, in the absence of the fourth respondent’s pleadings, becomes crucial for the proper determination of the issues in the main claim and the counterclaim.

[11]	The first to third respondents opposed this application. They maintained their position as outlined in the objection to the notice of amendment. They further contended that allowing the amendments now, when the matter has been referred to trial, would effectively reset the case, all pleadings would need further adjustments and would cause delay. The respondents submitted that the amendments introduce a new head of damages, being the interest that would have accrued had the sale of the land not taken place. The respondents further averred that the applicant seeks to fundamentally reshape its defence by introducing an entirely new case of estoppel against the fourth respondent.

[12]	The first to third respondents further contended that the applicant’s claim that it did not have enough details upon filing its original plea was untrue, as all the relevant information, being that the land had been compulsorily acquired and the certificates were readily available to the applicant at the outset. They submitted that nothing was preventing the applicant from formulating a proper defence and counterclaim at the time.

[13]	It was also argued that the applicant seeks to distance itself from the common mistake that all the parties laboured under in the transactions related to the property in question, and this was never raised in the original pleadings. Any damages the applicant claims were effectively settled in June 2020. It was also their position that the proposed amendments go beyond clarifying existing issues as they introduce new claims and alter the very foundation of the dispute. The amendment would derail the progress of the matter without just cause.

[14]	While the fourth respondent did not file papers to defend the main action, he surprisingly opposed this application. He contended that the issue of the gazette of the land and its effect on a sale transaction need not require parties to reconvene through amendment of pleadings. It was argued that the applicant has had five years to revise their basis for the calculation of damages. This is an inordinate delay. To seek to amend at this juncture has the potential to prolong the matter further. The fourth respondent further contended that the proposed amendments submit a whole new claim on the amount. That the evaluations of the land are not justified, and the revision in the sum of damages and alternative damages materially changes what is sought by the applicant.

[15]	The fourth respondent further averred that the matter would require an administrative enquiry and not an amendment of pleadings, as it may raise new issues. It was also stated that the application for amendment is prejudicial to the fourth respondent, both in terms of time and resources. The fourth respondent concluded that the applicant does not seek to amend pleadings but seeks to establish new issues, which is a show of mala fides.

[16]	The respondents urged the court to dismiss the application. The first to third respondents, however, sought costs on a legal practitioner and client scale.

[17]	In its answering affidavit, the applicant argued that the length of time is not in itself an indicator that the respondents will be prejudiced. The delay was because of a variety of factors. The applicant stated that the first delay was caused by the necessity to seek rescission of the default judgment which the first to third respondents had been granted in error. Thereafter, the parties engaged in negotiations with the hope of a settlement, and it was the attitude and actions of the respondents during these negotiations that delayed the referral of the matter for a pre-trial conference. It further stated that there is no prejudice upon the first to third respondents as they have been enjoying occupation and use of the property since the year 2000. The applicant also averred that the counterclaim is only contingent upon the success of the main claim.

ISSUE FOR DETERMINATION

[18]	The sole question the court has to determine is whether or not the amendment sought is proper and justified.

SUBMISSIONS BY THE PARTIES

[19]	Mr Manjengwah submitted that this is an application for amendment of the plea and counterclaim. The applicant herein is the first defendant in the main matter and the plaintiff in reconvention. Broadly, the applicant stood by the papers filed of record. He further submitted that the application deals with the amendment of two issues, firstly, the amendment in relation to whether the agreement giving ownership to the applicant is null and void and secondly, it relates to the counterclaim. The counterclaim will only kick in after a finding that the transaction was a nullity. He further stated that the principles in relation to what the court should consider have been extensively dealt with in the heads of argument.

[20]	It was argued that the first issue was whether the respondents had demonstrated any prejudice which could not be cured by an order of costs. The court must relate to the objection and the opposing affidavit to establish what facts have been set out to show that if the amendment is granted, they would be prejudiced. The mere fact that the proceedings will be delayed is not enough without stating the impact of that delay.

[21]	Counsel also argued that further filing of pleadings always arises, and the court may state the costs for the further papers. An averment that the amendment will further necessitate the filing of further papers can be remedied by an order of costs. For the first to third respondents, there is an averment that they have been in occupation of the property and are not paying any rentals. The amendment will not affect them financially. Eviction is what will affect them, and they will benefit from their longer stay as they are not paying rent.

[22]	Mr Manjengwah further submitted that he does not know what prejudice the fourth respondent would suffer, as there is no averment of any prejudice. They did not file any papers in the main action. The applicant is sued together with the fourth respondent. There are certain facts in the summons to which all the other parties can only assume. They are solely within the knowledge of the fourth respondent.

[23]	He also submitted that the second issue is whether the proposed amendment provides such a fundamental alteration of its plea as to constitute a new plea. The question will be answered by reference to three documents: the original plea, the proposed amendment and the issues identified as issues for the trial. If a proper assessment of the resultant plea will result in the issue for trial changing, then perhaps there is a fundamental alteration. Counsel argued that the question for determination remains when one looks at the proposed amendments, namely, whether the purported acquisition nullified the applicant’s rights and the subsequent agreements that followed. The concession is made that perhaps the applicant could have pleaded the assertions in detail in the first place. The explanation is that the applicant was sued together with the fourth respondent. There are certain facts in the summons to which all the other parties can only assume. They are solely within the knowledge of the fourth respondent.

[24]	Mr Manjengwah also argued that, as regards the proposed acquisition and the certificate of no present interest, which came after the acquisition, no one can speak positively about them. It was also argued that the very party that knows what transpired decided not to come to the party, and this is what motivated the applicant to want to amend its pleadings. All that the amendments state is that at every stage, we were dealing with the Ministry. There was an express assurance that it had no interest. The parties were entitled to assume that it had never had any interest or, if it had, it had abandoned it. The amendments would allow if the fourth respondent come as a witness in respect of the issues for trial, he would clarify the actual position. The amendment establishes culpability on the side of the Ministry for all that transpired.

[25]	Counsel further submitted that the second category of the amendment relates to the quantum of damages. The question of how much is the quantum of damages is a live issue to the end of the trial. The amendment seeks to explain how the quantum is explained. There are two ways which would be to look at the value of the loss (value lent) and the other is the value of the farm which would have been gained. He submitted that the value of the farm is in the original plea, but was converted into a currency that is no longer in use. The question of that loss only arises after the court has made a determination that the transaction was a nullity. There is, therefore, no prejudice. It clarifies issues.

[26]	On bad faith, he submitted that the accusation that might stick is not to have reflected enough when the original plea was filed. It required to speculate that the Minister might not say anything. It can be a failure to look at possibilities and not bad faith. The answering affidavit shows that there was a rescission of the default judgment, and the parties also tried to engage each other to seek a resolution. When it became clear that the matter was heading to trial, the question of the amendment then arose as the question became what this court would have to deal with at the trial. The applicant’s counterclaim is a contingent claim.

[27]	On the other hand, Ms Muzonzini submitted that if one looks at the counterclaim, the claim was for payment of damages. This amendment is not a clarification of issues but a fundamental alteration of the issues. Counsel argued that the letters relating to the misrepresentation have always been there, and the position of the fourth respondent has always been clear. She argued that the applicant has worked on its plea and seeks to introduce a new cause of action. She argued that the issue of damages has been abandoned.

[28]	Counsel argued that the applicant has abandoned its original claim and now wants an alternative claim. The applicant had all the time to amend their pleadings. The amendment should not be granted where it introduces new causes. The proposed amendment altered the character of the claim.  She further argued that the applicant also seeks to plead estoppel. It is a fundamental alteration as they want to change the entire nature of the case. There is a significant difference between what is in the plea and the counterclaim. She also argued that there is a lack of bona fides, and this is fully addressed in the heads of argument. It was finally argued that the amendment seeks to introduce a new cause. It has been brought late and brings an unsustainable legal cause.

[29]	Ms Jaure, counsel for the fourth respondent, abided by her papers filed of record.

THE LAW

[30]	The law is clear that a party may amend its pleadings at any stage of the proceedings before judgment. The court has a wide discretion to grant leave for a litigant to amend its pleadings if that is in the interest of justice and allows the court to properly determine the dispute before it. The relevant rule 41(10) of the High Court Rules, 2021 reads:

“The court or a judge may, notwithstanding anything to the contrary in this rule, at any stage of the proceedings before judgment, allow either party to alter or amend any pleading or document, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”

[31]	It is also settled law that the court generally adopts a liberal approach to the amendment of pleadings. In the exercise of its discretion the court is guided by established factors which include, inter alia, the explanation for the amendment, the nature of the amendments sought, the prejudice suffered by the other party and whether such prejudice cannot be remedied by an appropriate order of costs, the need for the court to determine the dispute or issues before it fairly and the bona fides of the application. The law on amendment of pleadings was remarkably restated in Cheney v Cheney HH 78/18, where Chitakunye J (as he then was) had this to say:

“A litigant can thus amend or alter their pleadings at any stage before judgement. The court or judge is granted wide discretion on whether to grant the amendment or not. Such discretion is guided by the need to ensure that the real issue between the parties is resolved and that the amendment does not prejudice the other party which may not be compensated by an order of costs.

In Agricultural Bank of Zimbabwe Ltd v Nickstate Investments (Pvt) Ltd & Others 2010 (2) ZLR 419(H) at 421C-E Gowora J (as she then was) aptly stated that:-

“The law is abundantly clear on the question of amendments to pleadings, and the court has a very wide discretion not only in regard to the scope of the amendment but also with regard to the time when an amendment can be applied for. In the exercise of its discretion the court will generally be guided by the principle that such amendment should not be seen to cause prejudice to the other litigant which cannot be cured by an order of costs necessitated by the need to further postpone the matter. Invariably, therefore courts have been liberal in allowing amendment of pleadings, and it is trite that pleadings can be amended at any time before judgment is issued. It is also a general rule that the courts will grant an amendment to pleadings unless the application to amend is mala fide.”

The liberal approach to the amendment of pleadings was also alluded to in UDC LTD v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210(H) at 216G- 217B wherein Chinhengo J  succinctly stated the position as follows:

“The general approach of our courts has been to allow amendments to pleadings quite liberally in order to avoid any exercise that may lead to a wrong decision and also to ensure that the real issue between the parties may be fairly tried. This liberality is only affected where to allow the amendment would cause considerable inconvenience to the court or prejudice a party or where there is no prospect of the point raised in the amendment succeeding or where matters set out in the amendment are vague and embarrassing and therefore excipiable;……. Thus, the question of prejudice to the other party if the amendment is allowed is a paramount consideration. It is singularly important where such prejudice cannot be compensated for by an appropriate order of costs.”

At 217 C- F, the learned judge cited with approval the considerations court must have regard to in applications for amendments as stated in Commercial Union Assurance Co. Ltd v Waymark NO 1995(2) SA 73 wherein at 77F-I White J summarised the principles as follows:-

“1. 	The court has a discretion whether to grant or refuse an amendment.

2. 	An amendment cannot be granted for the mere asking; some explanation must be offered   therefor.

3. 	The applicant must show that prima facie the amendment ‘has something deserving of consideration, a triable issue’.

4. 	The modern tendency lies in favour of an amendment if such ‘facilitates the proper ventilation of the dispute between the parties’.

5. 	The party seeking the amendment must not be mala fide.

6. 	It must not ‘cause an injustice to the other side which cannot be compensated by costs’.

7. 	The amendment should not be refused simply to punish the applicant for neglect.

8. 	A mere loss of time is no reason, in itself, to refuse the application.

9. 	If the amendment is not sought timeously, some reason must be given.”

[32]	In Whittaker v Roos & Anor 1911 TPD 1092, it was held that the court has the greatest latitude in granting amendments, and it is very necessary that it should have. The court went further to state that the object of the court is to do justice between the parties.

ANALYSIS

[33]	Applying the above principles, the court must determine whether the intended amendment has the effect of altering the applicant’s defence and cause of action in the counterclaim in such a way that it would constitute pleading a completely new defence or cause of action in the counterclaim. I do not agree that the proposed amendments to the plea and the counterclaim alter the applicant’s respective positions as already pleaded.

[34]	As for the plea, the applicant had already pleaded that the fourth respondent had represented that it had no interest in the property (see para 9), and the proposed amendment to para 2 simply adds to that paragraph what is already part of the main body of the plea. It further seeks to add para 2.1 to the plea, which outlines a defence already pleaded in para 9 and 10 of the original plea. If one carefully looks at para(s) 9 and 10, it would be apparent that they can support the application of the doctrine of estoppel. The amendment further seeks to clarify the further consequences of the representations by both the plaintiffs and the second defendant in the new para(s) 9.1 to 9.5, including that it lost US$2,556,093.61 and made a payment of US$843,906.39 to the plaintiffs for no cause. The issue of the misrepresentations by the plaintiffs and the second defendant had already been clearly pleaded in the plea and the counterclaim.

[35]	Accordingly, the issue of estoppel against the fourth respondent is already part of the pleaded cause centred on representations by the second defendant set out in para(s) 9 and 10. See also para 3 of the original counterclaim and para 14 of the plea. The averments already pleaded and which the applicant seeks to further clarify point to the application of the doctrine of estoppel as per the proposed amendment. In Econet Wireless (Pvt) v ZIMRA SC 17/2019, the court highlighted what has to be proved for estoppel to succeed when it remarked that:

“For the appellant to succeed in proving estoppel, it has to prove, and the authority for this proposition is the case of Andrew Phillips (Pvt) Ltd v GDR Pneumatics (Pvt) Ltd 1986 (2) ZLR 65(SC) 67, that the respondents or their officers made a representation in word or deed which might have reasonably misled the appellant; that the appellant was misled and that the representation induced the appellant to act as it did”

[36]	In any case, the fourth respondent against whom estoppel is being raised cannot be prejudiced as he did not even contest both the main claim and the counterclaim. Once he elected not to enter the fray in the main dispute, I am unable to see how he can claim to be prejudiced by an amendment of a pleading which he has failed to oppose. The opposition by the fourth respondent is, in my view, legally untenable and utterly groundless. The court is empowered to allow an amendment or changes to a pleading in order to make it more accurate or to reflect changing circumstances. This position was confirmed by this court in Stanbic Bank Zimbabwe Limited v Thalgy Investments (Private) Limited HH 311/23 where Mutevedzi J had this to say:

“The word discretion as used in the above context means that the court is granted the freedom to either allow or refuse an application to amend or alter pleadings by a party. The rider which binds it is that, as with all discretionary power, it must be exercised judiciously. In doing so the court is guided by set principles which I will endeavor to illustrate later. I however wish to first deal with one other small aspect which appears from r 41(10).

Whilst a lot of authorities have dealt with the interpretation of the word amend there is a dearth of similar clarification of the word alter which is conspicuous in the provision. Admittedly, the use of the two words in the same provision appears innocuous. Their definitions however show a material difference between them. They are deployed in the provision as alternatives. In my view, the legislature did so deliberately. R 41(10) seems to be in pari materia with r 28 (10) of the South African Uniform Rules which provides that:

(10) The court may, notwithstanding anything to the contrary in this rule, at any stage before judgment grant leave to amend any pleading or document on such other terms as to costs or other matters as it deems fit.

It is significant that the South African provision speaks to amendment only and not alteration. The omission of the word alter from their rules convinces me that its inclusion in our rules was intended to allow more than the making of minor changes to a pleading. The precedents in Zimbabwe have interpreted r 41(10) and its predecessor in O 20 r 132 of the High Court Rules, 1971 borrowing wholesale from how South African cases have interpreted their r 28(10). In the process our authorities seem to have proceeded oblivious of the distinction between the two provisions. That distinction cannot be lost. What I find intriguing is that on one hand The Law Insider Dictionary defines the word alter to mean the marking or changing of the terms, meaning or legal effect of a document in a material way.1 On the other hand The Oxford English Dictionary denotes the word amend as meaning the making of minor changes to (a text, piece of legislation, etc.) in order to make it fairer or more accurate, or to reflect changing circumstances.2 The similarity in the above definitions in relation to pleadings is that in both instances there is a making of changes to the affected pleading. The difference lies in the intensity of the changes. An alteration is more profound than an amendment.”

[37]	In my view, given the already pleaded defence, the proposed amendment of the plea falls within the permissible parameters of an amendment that seeks to clarify the issues and does not constitute a fundamental alteration of the issues. The amendment of the plea does not seek to introduce a completely new defence or alter it. The issue of the nullity of the transactions and the transfer to the applicant of the property remains the main issue subject to determination on trial. An amendment that does not seek to completely change or alter the defendant’s plea is what rule 41(10) is meant to cover.

[38]	In respect of the counterclaim, the cause of action pleaded is that the plaintiffs made representations that the first plaintiff had title to the property and that the second defendant also represented that it had no interest in the property. This resulted in the applicant entering into the contract of sale and the debt swap transaction, resulting in the subsequent transfer of the property to it. It is common cause that the applicant and the third respondent further entered into a lease agreement on 29 March 2017. The other subsequent transaction was the second sale of the property between the applicant and the second respondent. This they did when the property had been compulsorily acquired by the State in terms of the Constitutional Amendment No. 17 of 2005, which had rendered the property state-owned land.

[39]	The counterclaim is framed as a consequent claim upon the main claim being granted. It would, therefore, only arise for determination once the main claim is determined in favour of the plaintiffs and the transactions are nullified. The applicant pleaded that it suffered damages as a result of the plaintiffs' and the second defendant’s misrepresentations. The amendment seeks to clarify the claim for damages. It brings out clearly two ways, one in the alternative, as to how the damages must be quantified. The first main way is to look at the loss measured by the value of the capital sum and interest arising from the loan advanced to the plaintiffs. The second way, which is now in the alternative, is to measure the damages from the value of the farm the applicant will lose if the transactions are nullified. That has already been pleaded, and the quantum has been converted and claimed in United States dollars.

[40]	There is no doubt that the currency in which the damages were originally claimed is no longer in use. The averments clarify how the quantum in the main and the alternative claim should be assessed. The issue of quantum of damages remains an issue for trial and is a matter to be established through evidence. Thus, in terms of rule 37(8), “no denial or defence shall be necessary as to damages claimed or their amount, but they shall be deemed to be put in issue in all cases unless expressly admitted.” It is, therefore, clear that the issue of damages and their quantum is, by operation of the law, an issue for trial save where they are expressly admitted. The amendment of the counterclaim allows the court to properly asses the damages, if any, suffered by the applicant in the event the court nullifies the transactions. The amendment, therefore, falls within what rule 41(10) provides for.

[41]	There is clearly no alteration of the cause of action to such an extent that it can be said that the applicant seeks to bring a new cause of action. The new para(s) 9, 10, 11 and the prayer now para 12 do not bring a new cause of action. In any case, the proposed additions of para(s) 10 and 11 of the plea would follow naturally from the respective clarifications of the averments in para 9. They relate to the quantification of damages all arising from the pleaded cause arising from the representations made by the plaintiffs and the second defendant, which were acted upon by the applicant. I associate myself fully with the remarks by Dube J (as she then was) in Kenmark Builders (Pvt) Ltd v Gildlestone & Anor 2019 (1) ZLR 658 (H) supra, at p 662 B-C, where she stated that:

“The amendment sought should not have the effect of altering the real issues between the parties. The court has no power to allow an amendment that has the effect of introducing a new cause of action. An amendment to pleadings will be permitted only if it does not introduce a new cause of action, seek to alter the nature of the suit or cause of action or alters the foundation or character of the case. What determines the character of a suit is its foundation or cause of action and not the relief sought. If this course were to be permitted, the other party would require to be given an opportunity to rebut the new cause of action, resulting in a different trial.”

[42]	As already alluded to above, damages are always in issue and must be proved. The particularisation or further clarification of how such damages should be quantified cannot constitute the introduction of a completely new cause of action. There was an argument that the claim for damages was in local currency and could not be assessed in foreign currency, rendering the proposed amendment to be one which seeks to bring a claim that has no reasonable prospect of success. It was argued for the first to third respondents that:

“A significant portion of the alleged damages and related claims arise from a period governed by the Finance (No. 2) Act of 2019. The applicant is now attempting to reframe these claims, originally denominated in RTGS, into USD. This transformation is legally untenable, as it introduces averments that lack legal foundation.”

This argument, in my view, is without merit. The plaintiff’s claim for damages cannot be unlawful for being made in United States dollars.

[43]	The claim is for damages which have not been quantified as at 22 February 2019 (the effective date) to constitute assets or liabilities which were converted by operation of the law in terms of s 22 (1)(d) and (e) as read with s 22 (4)(a) of the Finance (No. 2) Act, 2019. The court has not yet quantified the loss or foisted the claims on the defendants. The claim for the damages was not a judgment debt or for amounts already assessed by the court to be affected by the law or to have been converted into RTGS dollars at the parity rate. This legal position was settled in Ingalulu Investments & Anor v NRZ & Anor SC 42/22, where the Supreme Court authoritatively held that:

“Section 22 (1) (d) and (e) as read with s 22 (4) (a) of the Act prescribe that the values of all assets and liabilities that were expressed or any financial or contractual obligations, other than foreign obligations, that were concluded or incurred in United States dollars on or before 22 February 2019 (the effective date or cut-off date), were deemed to have been expressed, concluded or incurred in RTGS dollars at the rate of one-to-one to the United States dollar. Further, that the value of all assets accrued or liabilities incurred after the cut-off date would be payable at the prevailing interbank rate of the local currency to the United States dollar.

Section 20 of the Act extends the application of the above cited provisions of the Act to judgment debts.

In addition, the ratio decidendi in the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC 3/20, was that, in terms of the relevant provisions of the Act, a judgment debt denominated in United States dollars on or before the cut-off date would be liquidated at the parity rate of one-on-one to the RTGS dollar.

It is trite that regard must be had to the text, context and purpose of the provisions and the broader architectural design of the Act. The relevant provisions must, per force, be construed as a whole and not in piecemeal fashion.

It is also axiomatic that a delict, unlike a financial or contractual obligation, cannot be categorized as an asset or liability until it is voluntarily accepted as such by the wrongdoer or until such acceptance is foisted upon the wrongdoer by a court of competent jurisdiction. This is because a delict is committed and does not accrue like an asset nor is it incurred like a liability. In accounting terms, an asset or a liability has an ascertainable monetary value, which is recorded in the relevant books or statements of account. This is the position that pertains to a judgment debt. It constitutes an asset in the books of the judgment creditor and, conversely, a liability in the hands of a judgment debtor. Neither of these parties can treat a delictual claim as an asset or a liability. They can only do so after a competent court of law has made a determination on whether the claim establishes a liability and thereafter assesses the measure of such a liability. In any event, only a judgment debt and not a delictual claim can be executed in the manner contemplated in s 20 of the Act.

It is for these reasons that we agree with Mr Tshuma that the text, context and purpose of both the relevant provisions and the broader scheme of the Act incorporates a financial or contractual obligation concluded or incurred before the effective date and a judgment debt made on or before the effective date and not a mere delictual claim lodged on or before that date into the ranks of assets and liabilities.  We are not persuaded by the contrary contentions made by Mr Mazibuko that the text of the Act is wide enough to include delictual claims lodged before the effective date into the category of assets and liabilities that are payable at the one-on-one parity rate.”

[44]	The Ingalulu case equally applies to this case. The Supreme Court clearly established that claims for damages would not constitute assets or liabilities valued in United States dollars which were affected by the provisions of the law. They could not have been converted into RTGS dollars by operation of law, as argued. This is the same principle enunciated in Zambezi Gas Zimbabwe (Pvt) Ltd v N. R. Barber (Pvt) Ltd & Anor 2020 (1) ZLR 138 (S) at p 144F, where the Supreme Court also said:

“Section 4(1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date. If, for example, the value of the assets and liabilities was, immediately before the effective date, still to be assessed by application of an agreed formula, s 4(1)(d) of S.I. 33/19 would not apply to such a transaction even if the payment would thereafter be in United States dollars. It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.”

[45]	It is also trite that damages can be claimed and awarded in foreign currency.  Thus, the settled principle of the law that “in the absence of an enactment directly prohibiting the courts to order payment in foreign currency, a court is at liberty to pronounce a judgment for damages sounding in foreign currency though such amount may be paid in local currency at the interbank rate prevailing at the date of payment.” See Shah v Nherera SC 55/24, where the court said:

“In any event, the court a quo ordered that the payment of the damages in United States dollars be converted to RTGS dollars at the interbank rate prevailing on the date of payment. It could competently do so.  In Construction Resources Africa (Pvt) Ltd v Central African Building and Construction Company (Pvt) Ltd & Another SC 110/22, at p 37, the court citing with approval the case of Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (S), remarked as follows: -

“I am firmly of the opinion that in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative lead taken both in Miliangos v George Frank (Textiles) Ltd [1975] 3 All ER 801 (HL)) and the subsequent extensions to the rule there enunciated, and in the Murata Machinery Ltd v Capelon Yarns (Pty) Ltd 1986 (4) SA 671 (C)at 673C-674B and 674E) case in South Africa, is to be adopted. This will bring Zimbabwe into line with many foreign legal systems. See Mann The Legal Aspect of Money 4 ed at pp 339-340.

Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of a devaluation in the value of currency between the due date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into the local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

46. In view of the above, it is trite that in the absence of an enactment directly prohibiting the courts to order payment in foreign currency, a court is at liberty to pronounce a judgment for damages sounding in foreign currency though such amount may be paid in local currency at the interbank rate prevailing at the date of payment. The court a quo therefore did not misdirect itself when it held that the law did not proscribe the grant of damages in foreign currency to be paid in RTGS dollars at an equivalent rate reckoned at the interbank rate at the time of payment.”

[46]	The Supreme Court has fully settled the issue raised by the first respondent against the claims for damages in foreign currency. There is nothing unlawful for the applicant to seek such damages in foreign currency, and the court, in awarding such damages, if proved, may order that the judgment debt would be payable in the local currency or ZIG equivalent thereof unless the sum due is found to be a foreign obligation. That is the law.

[47]	The respondent also argued that the applicant suffered no damages as it was paid in June 2020. This court is not seeking to determine the counterclaim. Accordingly, this argument should not detain me. It is an issue for the trial court to properly examine.

[48]	Given that the amendment does not introduce a new defence and cause of action in respect of the counterclaim, there cannot be any prejudice to the other parties which an appropriate order of costs would fail to cure. The amendments will assist the court in properly resolving the issues in dispute. As for the fourth respondent, there is no prejudice that he can reasonably suffer in the main action, which he has not opposed. He elected not to file any pleadings to defend the action and the counterclaim. By that election, he would suffer the consequences of the default. He cannot turn now and allege prejudice arising from an amendment related to pleadings he voluntarily chose not to defend. The amendment for the counterclaim cannot be prejudicial to the respondents because, in any case, the respondents can lead evidence to rebut the applicant’s evidence on the quantum of damages in the main matter.

[49]	On the bona fides of the application for amendment, the respondents argued that the applicant is seeking to amend its pleadings after five years. They argued that this rendered the application mala fide. In Stanbic Bank Zimbabwe v Thalgy Investments (Pvt) Ltd supra, where the court quoted the case of Lourenco v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 SC at 159 E-F where it was held that:

“The main aim and object in allowing an amendment to pleadings is to do justice to the parties by deciding the real issues between them. The mistake or neglect of one of the parties in the process of placing the issues before the court and on record will not stand in the way of this unless the prejudice caused to the other party cannot be compensated for in an award of costs. The position is that even where a litigant has delayed in bringing forward his amendment as in this case, this delay in itself, in the absence of prejudice to his opponent which is not remediable by payment of costs does not justify refusing the amendment.”

[50]	Indeed, the application for amendment should not be made in bad faith. This application cannot be said to be made in bad faith. The mere loss of time is not in itself a reason to deny an amendment. See Commercial Union Assurance Co Ltd v Waymark NO 1995(2) SA 73 (Tk) at 77F-I. While the plea and counterclaim were filed in 2020, the applicant gave cogent reasons why the amendment is now sought at this stage. There have been delays in the conclusion of the main action, yes, but the applicant cannot be blamed entirely for the delays. There is no dispute that at one time the court issued a default judgment, which was eventually rescinded. The matter was only referred to trial in 2024. The matter has not been set down for trial yet. There is still ample time to make the changes and allow the parties to adequately prepare for that trial. The issue of the quantum is evidential and would only arise if the main claim is successful. There are no mala fides in my view.

[51]	In any case, it was not disputed that the first to third respondents are still in occupation of the property in question and have not been paying any rentals to the applicant. The amendment sought cannot cause any prejudice for which an appropriate order of costs may not compensate in the main cause. All parties desire finality of this matter, but the court must be able to determine the real question in controversy between the parties.

[52]	The applicant has provided a reasonable explanation for the circumstances necessitating the amendments and why the application is being made now. There is no dispute that the value of the farm was stated in a currency that is no longer in use. As stated above, the applicant is entitled to claim damages in foreign currency. The court would also be at liberty to grant judgment in units of foreign currency if those damages are proved at the trial.

[53]	The other point was that the fourth respondent decided to sit on the fence. The fact that the applicant took time until after the pre-trial conference to reflect on the failure by the Minister to enter the fray and explain his conduct, and necessitated that the role of his office be further clarified, does not on its own establish mala fides. The applicant appropriately acted to ensure that the real question in controversy between the parties is fully examined at trial. The further amendments to the plea fall within that context. Even if it can be held that the legal practitioners committed an error or were careless in the process of placing the issues before the court, that is not a hindrance to an application to amend a pleading. See Stanbic Bank Zimbabwe Ltd supra at p 10. The lateness is also viewed in the context of the stage the proceedings had reached. In casu, the matter has been referred to trial, and trial has not commenced yet. The explanation given for why the application was made before the trial is satisfactory.

[54]	There was no issue with the proposed amendments to the joint pre-trial conference minute. The amendments must, therefore, be allowed.

DISPOSITION

[55]	It is in the interests of justice that the application for amendment be allowed. Amendments are permitted in order to allow the real issue between the parties to be tried. See Copper Trading Co (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S). The application has merit and must succeed.

[56]	As regards costs, I fully associate myself with the remarks by Mutevedzi J in Stanbic Bank (Pvt) Ltd supra at p 16 where he said:

“It is correct that a party who proposes an amendment must pay costs which are incurred by the other party as a result. See r 41(9). But that is as far as it goes. That rule only applies to instances where a party gives notice to amend and the other party does not object to it. The principle which is inherent in r 41(9) is that an opponent’s objection to a proposed amendment must be taken sensibly and responsibly. If it is intended to vex the party seeking the amendment or to plague that party with legal expenses without raising bona fide grounds of objection, the court is at liberty to depart from the general rule and order the objecting party to pay costs sustained from instituting the application. In Van Os v Breda 1911 TPD 165 the court held that even where the opposition is reasonable it does not take away the right of the party seeking the amendment as a winning party to be recompensed by an award of costs. In the end each case must depend on its own circumstances. The court’s discretion to order costs in that regard remains unrestrained.”

The applicant submitted that costs should be in the main cause. There is no reason for me not to grant that request. It was the successful party and was magnanimous in victory. The circumstances would warrant an order of costs as sought by the applicant.

[57]	Accordingly, I make the following order:

1. 	The applicant is granted leave to amend its plea and counterclaim as well as the joint pre-trial conference minute in accordance with the Notice of Amendment filed on 22 January 2025.

2.	The applicant shall deliver the amended pleadings within ten (10) days of the date of this order.

3. 	The respondents are granted leave to make any consequential amendments to their pleadings affected by the amendment within ten (10) days of service of the amended pleadings.

4. 	The costs of this application shall be in the main cause.

Dembure J: ……………………………………………………..

Wintertons, applicant’s legal practitioners

Honey & Blanckenberg, 1st to 3rd respondents’ legal practitioners

Civil Division, Attorney General’s Office, 4th respondent’s legal practitioners