P G Industries (Zimbabwe) Limited v Gladys Rumbidzayi Chido Machawira

### Preamble
1
HH 255-2912
HC 8067/11
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P G INDUSTRIES (ZIMBABWE) LIMITED

versus

GLADYS RUMBIDZAYI CHIDO

MACHAWIRA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 6 June 2012 and 20 June 2012

Opposed Application

Ms F S Mamvura, for the applicant

Ms N M Masunda, for the respondent

MATHONSI J:  The applicant employed the respondent as its Group Audit Manager. In that capacity she enjoyed the benefit of the use of a company motor vehicle, a Mazda Familiar, registration number AAM 7769 (“the vehicle”). The vehicle remained the property of the applicant.

By letter dated 30 June 2011, the respondent resigned, from employment and proposed to purchase the motor vehicle and the lap top belonging to the applicant at the end of her employment contract. That letter reads in relevant parts as follows:

“Re : Resignation from Employment

I would like to officially tender my resignation from the PG Industries Organisation. As per our discussion I would like to leave on the 31st of July but as I have an Audit Committee meeting on the 16th of August, I agree it is only fair for me to stay until the 16th of August 2011. I would therefore like to apply for a waiver of notice for the rest of the month of August and September.

I am also in possession of two company assets, my company car which I have offered to buy as guided by the motor vehicle policy and your good office, and my laptop which I’d also be prepared to buy if the company allows.” (The underlying is mine)

The Group Chief Executive Officer of the applicant responded to the respondent’s letter by letter of 10 August 2011 which reads in relevant part thus:

“We have taken due consideration to your request to purchase certain company assets allocated to you during your employment with us. We are pleased to inform you that, in terms of the PGIZ Motor Vehicle Policy, you may purchase the motor vehicle that is currently, in your possession for 10% of the market value less 10% or at Net Book Value, whichever is he (sic) lesser. In your case, the average market value for the vehicle Mazda Familiar Registration Number AAM 7769, is $3 500-00 while the depreciation net book value is $3 990-00.

Therefore in line with the new vehicle policy above, you may purchase the vehicle for $3 150-00. Please note that you are required to pay this purchase price in full at the time of your departure.” (The underlining is mine)

It is important to note that when the respondent asked to purchase the vehicle she was willing to be guided not only by the motor vehicle policy but also by the “good office” of the Group Chief Executive Officer of the applicant.

The applicant offered the vehicle to the respondent using a formula set out in the letter referred to above and specifically computed the purchase price as $3 150-00. Instead of accepting the offer made by the applicant as it was, the respondent re-calculated what she considered as the purchase price. Her letter to the Group Chief Executive Officer dated 16 August 2001 reads as follows:

“Re: Purchase of Mazda 323 Familiar Registration Number AAM 7769

Reference is made to your letter dated 10 August 2011, reference number HM/CM 10082011 regarding the above matter.

With reference to para 2, lines 2 to 4 where you state: ‘We are pleased to inform you that in terms of the PGIZ Motor Vehicle Policy, you may purchase the motor vehicle that is currently in your possession for 10% of the market value less 10% …’, I have accepted this offer and have paid the sum in full into the PG Stanbic account number 0222020998050 as per your instruction in para 3 where you say the purchase price is to be paid in full at the time of my departure. Copies of deposit slip number 52214 and cash deposit advice number 1879264 are attached (p 2).

I re-performed the calculation as per the vehicle policy stated above and my calculations where (sic) as shown below:

Average market value (per your letter)			US$3 500-00

10% of market value						US$   350-00

Less 10%							US$      35-00

Therefore total amount owing to PG				US$    315-00

I would like to process change of ownership of the vehicle and for that I need an affidavit from the company authorising the change as well as the vehicle registration book. Your assistance in this regard would be appreciated.

Yours sincerely

Gladys R C Machawira.”

It is clear from the contents of this letter that it was not an unequivocal acceptance of the offer made by the applicant. Instead the respondent selected what she regarded as favourable to her, did her own calculations which were different from those contained in the applicant’s offer and came up with her own figure of what she regarded as the purchase price of the motor vehicle. This way she came up with what amounted to almost the price of a piglet, $315-00, as the price of the motor vehicle which amount she deposited into the applicant’s account.

This irked the applicant which promptly withdrew the offer, refunded the sum of $315-00 which had been paid by the respondent into its account and demanded the immediate return of its motor vehicle. When the respondent failed to return the vehicle, the applicant filed an urgent application seeking an order directing the respondent to surrender the vehicle. A provisional order was granted by this court on 23 August 2011, the interim relief of which directed the respondent to return the vehicle to the applicant.

It is confirmation of that provisional order which is being contested by the respondent who argues that she exercised her option to purchase the vehicle in terms of the existing policy of the applicant. She has submitted a vehicle policy document which differs sharply from that produced by the applicant on the computation of the purchase price of the vehicle.

At the hearing of the matter, Ms Masunda for the respondent took a point in limine that this court possesses no jurisdiction over the matter because this is a dispute arising out of an employment contract which falls within the exclusive purview of the Labour Court in terms of s 89 (6) of the Labour Act [Cap 28:01], which provides that no court other than the Labour Court, shall have  jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1) of s 89.

That subsection sets out clearly those matters in which the Labour Court enjoys exclusive jurisdiction. They include the hearing of appeals in terms of that Act, matters referred by the Minister, referring a dispute to a labour officer, appointing an arbitrator and exercising review powers as would be exercisable by the High Court.

It is now settled law that the exclusive jurisdiction of the Labour Court is limited to only those matters set out in s 89 (1) of the Labour Act. In all other matters, this court has jurisdiction. DHL International Ltd v Madzikanda 2010 ZLR 201 at 204 B-D; Moyo v Gwindingwi & NO & Anor HB 168/11; Samudzimu v Dairiboard Holdings Ltd HH 204/10.

The dispute between the parties in the present case relates to a sale agreement involving a motor vehicle, wherein the applicant alleges that there was never an agreement while the respondent is rooting for the existence of such agreement. It is therefore not one of the matters in which the Labour Court enjoys exclusivity. It is for that reason that I dismissed the point in limine.

Coming to the merits of the matter, the issue that falls for determination is whether at the time of the termination of the employment of the respondent, the parties entered into a purchase and sale agreement involving the Mazda Familiar Motor vehicle, as would disentitle the applicant to an order for the return of that vehicle.

It is a well-established principle of our law that for a contract to exist, the parties must be of the same mind, there must be a coincidence of wills or cunsensus ad idem. In determining whether such meeting of the minds occurred, a court is not equipped with a magical crystal ball but must find the answer from the conduct of the parties. As started by TREDGOLD CJ in Levy v Banket Holdings (Pvt) Ltd 1956 R & N 98 (S) at 104-5:

“In considering whether a contract is concluded between two parties, a court is not interested in the state of mind of the parties considered in abstract.  It must decide the issue on the state of mind of the parties as manifested by word or deed. It is idle for a party to avow mental reservations or unspoken qualifications if these are inconsistent with what is said or done.”

It is also trite that for a contract to exist there must be an offer made by one party which is accepted by the other. For an acceptance to conclude a contract, it must be unequivocal. As stated by the learned author, RH Christie, Business Law in Zimbabwe, 2nd ed Juta & Co Ltd, at p 39:

“To be effective in creating a contract; acceptance must be so clear and unequivocal as to leave no reasonable doubt in the offeror’s mind that his offer has been accepted: Selected Mines & Marketing (Rhodesia) Ltd v Trees Asbestos Mining Co Ltd 1952 SR 57. The reason for requiring a higher degree of certainty than the standard of proof on the preponderance of probability that is universally accepted in civil as opposed to criminal cases is that the offeror is entitled to expect an answer on which he can immediately act, without interrupting his business while he weighs up conflicting probabilities in order to decide whether he has a contract or not. A purported acceptance in the form ‘Yes, but …’ will not do, because by seeking to add to or subtract from the terms of the offer it does not create the necessary agreement but leaves the negotiations still open.” (The underlining is mine)

In casu, the applicant made an offer to the respondent to sell the motor vehicle on terms spelt out in the letter of 10 August 2011. The respondent did not give an unequivocal acceptance. In fact she did not accept the offer at all. The moment she started saying “I have reperformed the calculation …” she was bringing herself under the ambit of what Christie christened  “Yes, but …” which is unacceptable. That then left the negotiations very wide open and did not result in a coincidence of wills or a contract of purchase and sale.

The respondent may have a case for what Ms Masunda argued as a pre-emptive right to purchase the motor vehicle, but that is not the subject of the present inquiry. It is therefore not even necessary for me to deal with the two conflicting sets of motor vehicle policy documents submitted by the parties because, in my view, at the time the respondent left employment the parties had not reached an agreement of sale involving the motor vehicle. Until such time that an agreement had been reached, the applicant was entitled to the motor vehicle.

I am therefore satisfied that a good case has been made for the confirmation of the provisional order made on 23 August 2011.

On the issue of costs, it is true that the respondent’s case has always been a bad one. However, it is the applicant which created the situation obtaining now, where the respondent was given an offer subject to two interpretations. She was therefore entitled to contest the matter. I do not agree that this is a matter calling for punitive costs.

In the result, I make the following order, that:

The provisional order made on 23 August 2011 is hereby confirmed.

The purported agreement of sale of the Mazda Familia registration number AAM 7769 between the applicant and the respondent is hereby declared void ab initio.

The respondent shall bear the costs of the application on an ordinary scale.

Mawere & Sibanda, applicant’s legal practitioners

Scanlen & Holderness, respondent’s legal practitioners