NASHCRYSTAL MOTORS (PRIVATE) LIMITED v TOTAL ZIMBABWE (PRIVATE) LIMITED and OTHERS [2025] ZWMTHC 45 (28 July 2025)

1 HCMTJ 45-25 HCMTC 52/25 Ref Case No. HC 27/18 NASHCRYSTAL MOTORS (PRIVATE) LIMITED versus TOTAL ZIMBABWE (PRIVATE) LIMITED and B. H DRURY and DRAWCARD ENTERPRISES (PRIVATE) LIMITED and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 28 July 2025 Opposed Court Application to Amend Pleadings Advocate L Uriri with Mr P Mukombe, for the applicant Mr T. J Mupangwa, for the 1st respondent Advocate W. Ncube, for the third respondent MUZENDA J: On 20 March 2025 the applicant approached this court with an application seeking this court’s indulgence to grant it leave to amend its combined summons. It sought the following relief as amplified by its draft: “It is Ordered that: 1. Leave of the court is granted for the Applicant to amend his alternative claim in Case number HCMTC 27/18 in terms of Notice of Amendment dated 14th March 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 effected by the amendment within ten (10) days of service of the amended pleadings. 4. Costs of the application be in the cause.” Background On 31 July 2024 under case number SC324/21 the Supreme Court per CHIWESHE JA gave the following order: “(1) The appeal be and is hereby allowed with costs. (2) the order of the court a quo be and is hereby set aside and, in its place, substituted by the following: HCMTJ 45-25 HCMTC 52/25 Ref Case No. HC 27/18 a) The special plea of prescription raised by the first defendant is hereby upheld. b) The agreement of sale in respect of stand 2427 Umtali Township in Mutare entered into between the second and third defendants on 3 July 2009 be and is hereby declared valid and enforceable. c) The Deed of Transfer Number 4777/2017 issued in favour of the third defendant be and is hereby upheld. d) The applicant shall pay the costs of suit. (3) The matter be and is hereby remitted to the court a quo for it to hear and determine the first respondent’s alternative claims and the appellant’s counter-claim.”(my own emphasis) After the order of the Supreme Court the record under HC 27/28 was referred back to this court to specifically determine the current applicant’s alternative counter-claims as well as third respondent’s counter-claim for the eviction of applicant from Stand 2427 Umtali Township in Mutare. The applicant indicated that it intended to amend paras 19.7, 21, 21.4, 21.5, 21.6 insertion of “United States Dollars currency.” In the amounts being claimed in the summons and declaration para 19.7 of the applicant’s summons before the sought amendment is crafted as follows: “19.7 Plaintiff has the right to cancel the agreement of sale entered between the parties and is entitled to full refund of the paid purchase price of $80 000. Paragraph 21 reflects: “21. In the third alternative, as against the 3rd defendant, plaintiff avers that: 21.4 Plaintiff made some necessary improvements on the immovable property which was in a sorry state to make it modern and attractive to customers at an actual cost(s) of $43 667. 21.5 the agreement between Plaintiff, first and second Defendants could not materialize and the property in question was later sold and transferred to 2nd defendant in 2017.” The proposed amended paras would then read as follows: “19.7 Plaintiff has the right to cancel the agreement of sale entered between it and 1 st Defendant and has since cancelled it and is now demanding the full refund of the paid purchase price of US$80 000.” In the third alternative, para 21 is sought to read as follows: “In the third alternative as against the 1st, 2nd and 3rd Defendants, one paying absolving the others, avers: 21.4 substitution of $43 667 with US$ 43 667 HCMTJ 45-25 HCMTC 52/25 Ref Case No. HC 27/18 21.5 Substitution of 2nd Defendant with 3rd Defendant and thus read: ‘The agreement between Plaintiff and 1st and 2nd Defendants could not materialize and the property in question was later sold and transferred to 3rd Defendant in 2017’ 21.6 In the premises 1st, 2nd and 3rd Defendants or one of them was enriched at Plaintiff’s expense in the sum of US$43 667 which amount Defendants failed to pay.” Paragraph 2 of the prayer is sought to read: “i) In the alternative and/or in any event, as against 1st and 2nd Defendants, one paying absolving the other: a) US$80 000 being refund of the paid purchase price. b) US$ 100 000 being additional amount of money needed to purchase other premises of same c) value of extent. Interests on (a) and (b) from the date of issue of summons to date of full and final payment. (ii) In the alternative and or in any event, as against 1 st, 2nd and 3rd Defendants, jointly and severally one paying the other to be absolved; d) US$43 667 being costs of the improvements on the property in question. (iii) As against 1st to 3rd Defendants the one paying the other to be absolved, costs of suit.” The proposed amendment was prepared on 10 March 2025 and was served on all parties. In response first to third respondents objected to the sought amendment. After the objection applicant decided to lodge this current application. In its founding affidavit, applicant contends that the proposed amendments will enable this court to ventilate the real and substantial issues between the parties and thereby bringing real justice to the matter. Applicant realized very late when it was preparing for hearing of the alternative claims. Applicant added in its affidavit that the application to amend the pleadings was being done in terms of r 41(10) of the High Court Rules, 2021. According to the applicant the Supreme Court remitted the matter for this court to hear and determine the alternative claims and the third respondent has been applying for trial dates and as such applicant was at liberty to seek the amendments before the setting down of the matter. To the applicant there is yet no judgment contemplated in terms of r 41(10). Applicant’s further view is that there is no cause of action to talk about and no prejudice visits upon all the respondents. Instead in applicant’s eyes the amendments are a safety to do justice presumably to itself. It further proposed that it was prepared to pay respondents’ costs. HCMTJ 45-25 HCMTC 52/25 Ref Case No. HC 27/18 In its opposing papers, first respondent impugns the short-comings of the applicant’s papers. First respondent further adds that the trial was concluded in 2021 and it was the trial that all parties had closed their respective cases and a determination was made on the main claim based on the summons and pleadings filed by the applicant and to the first respondent the proposed amendments introduce a new cause of action highly prejudicial to the first respondent. Most of the sought amendments were not originally pleaded under HC 27/18 first respondent further contended. According to first respondent these new pleadings would unavoidably lead to the reopening of the whole matter and require first respondent to lead new evidence. To first respondent, this court’s duty is reservedly to determine the issues based on the four corners of the record and nothing more. The original pleadings do not show that applicant was claiming unjust enrichment against first respondent as is being now sought by the applicant and if applicant is granted leave to amend, then it would boil down to the fact that the matter would be heard afresh. In effect, the first respondent adjudges the sought amendments to be pursued in bad faith. First respondent prays that the application be dismissed with punitive costs of legal practitioner-client scale. The third respondent in opposing the amendment chronicles the background of the whole matter and agrees with first respondent that the application for amendment is being done in bad- faith and that the proposed amendments are chiefly tailored to prevent completion of the matter. Such an eventuality would facilitate the confirmed occupation of the premises by the applicant without payment of rent. The sought amendment, third respondent, adds prejudices to third respondent. The amendments being sought drastically bring new cause of action against first to third respondents, it was further contended. The same would equally apply to the claim for unjust enrichment of US$43 667. To third respondent, it identifies itself with first respondent’s position that this court should not grant the amendment sought but proceed to decide the matters of alternative claim and third defendants counter-claim based on the evidence led during trial. In other words third respondent contends that the duty of the court is to make pronouncements on the issues remitted by the Supreme Court. As such if it is a continuation of the deliberations of remitted issues, this court resumed its assessment of facts already placed before it by the parties and in such a scenario there will be no need to amend pleadings or admit fresh evidence extrinsic HCMTJ 45-25 HCMTC 52/25 Ref Case No. HC 27/18 from the already consolidated record of proceedings. Third respondent reiterates that r 41(10) does not permit amendment of pleadings during or after the judgment. All pleadings had been closed and the Supreme Court did not order reopening of the matter. Third respondent equally prays for the dismissal of the application with punitive costs. The issues for determination are as follows: 1) Whether the Supreme Cour’s order effectively demands the reopening of the matter? 2) Whether the sought amendments can be granted by this court? 3) Whether applicant should pay punitive costs of legal practitioner-client scale? WHETHER THE SUPREME COUR’S ORDER EFFECTIVELY DEMANDS THE REOPENING OF THE MATTER? The operative part of CHIWESHE JA’s order reads as follows: “(3) The matter be and is hereby remitted to the court a quo for it to hear and determine the first respondent’s alternative claims and the appellants counter-claim.” When the applicant read the word “hear” in the order its perception was that the court had been directed to hear fresh evidence and also consider amendment of pleadings by any party. The word “hear” was dropped as a snare to the applicant. First and third respondents both have a different interpretation. To them the word “hear” did not mean reopening pleadings. The duty of the court is to make a pronouncement about the alternative claims and third respondents’ counter-claim for eviction. In interpretation of the word “hear” it should not be done outside the realm of the facts outlined above. I had the privilege of hearing all parties during trial. The trial was a result of the position that pleadings had been officially closed and the documents all discovered and filed by all parties. I had also the opportunity to hear all witnesses’ testimony on all contentious or triable issues including applicant’s counter-claims and 3 respondents’ counter-clam. Having found in favour of applicant’s main claim. I deemed the very contentious issues now remitted to me by the Supreme Court. Had I not ruled in favour of the applicant, I was well capacitated with adequate tools in form of both oral and documentary evidence to determine applicant’s counter-claims as well as third respondent’s counter-claim. HCMTJ 45-25 HCMTC 52/25 Ref Case No. HC 27/18 The word “hear” in my view alludes to “sit over a matter hold on the scales, hold court, give a hearing to, officiate or arbitrate.” All this I did before I gave a judgment which prompted third respondent to approach the superior court. Applicant pleaded to the matters and its managing director gave oral evidence seeking to convince this court to give judgment in its favour on the alternative claim. In response third respondent did the same. I am thus persuaded by respondents that the proceedings had progressed well past the stage where a litigant can seek the court’s indulgence to doctor its pleadings. The critical word in the operative part of the Supreme Court’s order is the word “determine”. I have heard and cannot rehear the parties on any issue stretching from pleadings to further submissions on any factual or legal point. The determination will be made from the four corners of the record before it was sent to the Supreme Court and not from the bonus issues a party seeks to smuggle into the record. It is not a trial de novo if the Supreme Court had wanted to direct so then the order should unambiguously reflect so. I conclude therefore that r 41(10) of the High Court Rules, 2021, do not apply to a matter specifically remitted for determination more importantly where such an issue had been left hanging by a court where the latter had heard all evidence from litigants and received documentary evidence. No pleadings are open to amendments. WHETHER THE SOUGHT AMENDMENTS CAN BE GRANTED BY THIS COURT? In its papers applicant contends that the proposed amendments would allow this court to ventilate real issues between the parties. The proposed amendments would shade light on the issue of currency being claimed for refund. Further the amendments would clarify in specific terms what applicant is claiming against each respondent. A deep analysis of applicant’s papers relating to the amendments totally illustrates that those amendments would amount to a reopening of pleadings after a judgment appealed against by the respondents had been passed. Indeed, once such an amendment is allowed it would prejudice particularly third respondent in many respects, judged by the fact that the claim for unjustified enrichment by the applicant was never put to the third respondent. Under normal course of proceedings an application for amendment of pleadings may be allowed provided the affected parties do not suffer prejudice but in casu pursuant to my HCMTJ 45-25 HCMTC 52/25 Ref Case No. HC 27/18 interpretation of the Supreme Court’s order above herein on whether a fresh hearing could be entertained, my view is that the application for amendment is belated and misplaced. It ought to fail. Question of Costs The respondents are praying for costs on legal practitioner client scale. The jig-saw puzzle in this application is centered on the word “hear” which applicant honestly perceived to mean that the door to allow amendments had been reopened. Would a court in such a scenario order punitive costs? It is my considered view that applicant misinterpreted the contextual meaning of the phrase “hear” and “determine” which any legal mind would have done albeit incorrectly. Applicant conceded in its papers that if the application for amendment is granted it was prepared to pay costs. There is nothing amiss to follow the traditionally accepted norm that the costs follow the outcome of the action or application. One would not be so certain to coin the application frivolous and vexatious so as to attract punitive costs sought by the respondents. Third respondent on one occasion filed extra-heads of arguments which were subsequently withdrawn after third respondent realized that it had over-stepped the procedure. Accordingly, the following order is returned: 1. The application to amend pleadings is dismissed. 2. Applicant to pay 1st and 3rd respondent’s costs at ordinary scale of party and party.