Vimbiso v Dairibord Employee Share Ownership Trust (HC 4924 of 2014) [2015] ZWHHC 235 (10 March 2015)

RONALD VIMBISO versus DAIRIBORD EMPLOYEES SHARE OWNERSHIP TRUST (DESOT) HH 235-15 HC 4924/14 HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 5 & 11 March 2015 Opposed application Ms B. T. Munjere, for the applicant G. Chingoma, for the respondent MATHONSI J: The applicant was a proud employee of Dairiboard Holdings Limited for a period of 33 years. Whatever his secret to employment longevity was, as is the case with anything human, his employment was terminated by retrenchment in May 2013. During the tenure of his employment, he had qualified to purchase 223 700 shares via the medium of the respondent, a locomotive through which the employees acquired a stake in the company. That way he became a member of the Trust. In terms of clause 10 A. 1 of the Trust Deed of the respondent, the applicant elected upon termination of his employment not to remain a participating employee of the Trust and offered his shares to the respondent. The respondent did not accept the offer responding by letter dated 20 March 2013 which reads as follows: “Mr R. Vimbiso Gweru Dear Mr Vimbiso WITHDRAWAL FROM DAIRIBOARD EMPLOYEE SHARE OWNERSHIP TRUST (“DESOT” OR “the Trust”) We acknowledge receipt of your letter in which you advise us of your intention to withdraw from DESOT in which you are a member. The letter constitutes notice of your offer to sell (223 830) being your units in DESOT. We advise that the Trust does not presently know of any employee who is willing and able to purchase your units nor does the Trust currently have the money to repurchase your units. The Trustees of DESOT will, however, be willing, subject to your agreement, to assist you between the date of this letter and 21 May 2013 (being 60 days from the withdrawal notice) with securing a buyer for your units. We advise that the Trustees will seek to assist you in this regard only on the following terms: (a) If the date of 21 May 2013 has passed without the Trustees having secured a buyer for your units, then your withdrawal application will automatically lapse and you will have to file a fresh application notice; HH 235-15 HC 4924/14 (b) Will have no claim against the Trustees or DESOT should they fail to secure a buyer for your units, or to secure funds for the re purchase of your units within the above time period; (c) Should the Trustees secure a buyer for your units, or should the Trust subsequently be able to repurchase your units, within the above time period, the price at which your units will be purchased or repurchased, as the case may be, shall be the price per unit that is equivalent to the market price (as quoted by the Zimbabwe Stock Exchange) for a DZL Holdings Limited share as on the date of the withdrawal notice. (d) Kindly confirm that we can proceed on the terms and conditions proposed above by signing this letter in the space provided below and returning the signed copy to us. Yours faithfully For DESOT I. SHOKO Desot Secretary.” The respondent’s letter is not signed by the applicant as confirmation of the terms and conditions and a dispute has arisen as to whether it was delivered to the applicant. The applicant claims he never saw it while the respondent maintains that the letter was served upon the applicant who readily accepted its conditions. The applicant has approached this court seeking payment of $67 110-00 from the respondent being the cost of his 223 700 shares at $0.30 per share which was their value at the time of his withdrawal together with interest at the prescribed rate of 5% per annum from the date of service of the application to date of payment. He states that a sale agreement was concluded between the parties after he offered his shares to the respondent who did not respond. As more than 45 days lapsed from the date of his notification, the respondent had accepted the offer by acquiescence. The respondent opposes the application on the basis that there was never an agreement of sale between the parties it having notified the applicant of its rejection of the offer by letter dated 20 March 2013. From there on the parties’ relationship was governed by its terms and conditions which the applicant accepted. Both counsel point to a dispute of fact existing in this matter namely whether the respondent’s letter was delivered on the applicant. They however differ on the solution. Ms Munjere who appeared for the applicant submitted that while there may be a dispute of fact, it is not one which the court cannot resolve. She referred me to the case of Francis R Fernandes & Sons v Mudzingwa & Ors HH 22/14 in urging me to take a robust approach and resolve the dispute as, in her view, there is no evidence to suggest that the respondent replied or that the letter was delivered. This is because the letter attached to the opposing affidavit was not signed as required by its contents. HH 235-15 HC 4924/14 Mr Chingoma on the other hand submitted that the dispute of fact was known to the applicant before it filed the application. He had filed a similar application against Dairiboard Holdings Limited in HC 3965/14 seeking the same relief but was stopped dead in his tracks he having sued a wrong party. He capitulated, promptly withdrawing the application but not before the issue of the letter of 20 March 2013 had been raised and a copy of it attached to the opposition. The applicant was therefore forewarned of that dispute and should have proceeded by summons action. He did not and must now face the consequences, a dismissal of the application. It is true that where an applicant has taken a wrong turn and proceeded by application procedure where there is a dispute of fact when it should have proceeded by summons action, the court has a discretion either to refer the matter to trial for viva voce evidence to be led or to outrightly dismiss the application. The court would opt for the latter where at the time the application was made the applicant was aware of the dispute of fact but proceeded that notwithstanding: Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H) 236 C-D. However, I take the view that whatever dispute exists it can be resolved on the papers because the papers speak for themselves and will take a robust view of the facts and resolve the dispute: Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA1155. Although none of the parties has seen the wisdom of attaching the full text of the Trust Deed, relevant excerpts have been produced and none has disputed that they come from the full text. Clause 10 A of the Deed provides in relevant part thus: “10A Sale of Units on Termination of Employment 10 A.1. Subject to clauses 1.5 and 1.6 above, a Participating Employee may, on or after termination of his employment for any reason whatsoever and by notice in writing to the Trustees, elect not to remain as a Participating Employee of the Trust 10 A.2. ………… 10 A.3. If the Participating Employee elects to discontinue his participation in the Trust, then the following provisions shall apply: 10 A. 3.1 Upon receiving the applicant’s notice in terms of clause 10A.1 the Trustees shall, at their discretion and having regard to the Trust’s liquidity requirement and / or the availability of DZL Employees willing and able to purchase the Units offered for sale, decide whether or not to repurchase the Units offered for sale and shall advise the applicant of their decision within forty-five (45) days of the delivery of the notice by the applicant Participating Employee. The Trustees’ decision in that regard shall be and (sic) binding upon the Participating Employee” (The underlining is mine) If the decision of the Trustees is final and binding on the employee it is not without reason that the applicant now denies receiving the letter of 20 March 2013 because it HH 235-15 HC 4924/14 communicates the respondent’s rights in terms of the Trust Deed. In its discretion the respondent elected not to purchase the units and made a counter proposal which appears to have been accepted and informed the relationship of the parties thereafter. I say so because, notwithstanding his protestations that he had sold his shares to the respondent, there is no proof of the existence of such sale. For a sale to exist there must be an offer made by the offeror which must be met by a clear and unequivocal acceptance by the offeree which leaves no doubt in the mind that the offer has been accepted. See R H Christie, Business Law in Zimbabwe, 2nd ed Juta & Co Ltd at p 31. In my view even if we were to accept that the letter of the respondent dated 20 March 2013 was not communicated to the applicant to announce the rejection of his offer, it cannot be said that there was an acceptance as to give rise to a valid sale agreement. Surely an unequivocal acceptance cannot be made by silence or acquiescence. Significantly, Ms Murenje for the applicant accepted that the applicant had, while receiving treatment in America, sent an email dated 25 June 2013 through his daughter Sandra saying: “Further to my communication regarding my 223 700 DESOT shares and due to the drop in Stock Exchange share prices, I ask that you not sell my shares at less than 30c per share as previously instructed. As if this instruction is not followed (sic), I may no longer be capable to offset my medical expenses which I have incurred during this visit in the USA. Thank you Ronald Vimbiso” The shares were still his in June 2013 not the respondent’s. They were being sold at a given price and certainly had not been sold as the applicant now alleges. He had previously instructed someone to sell them at less than 30c and was now rescinding those instructions. Surely that should put all pretensions of a dispute to rest. There was no way the applicant could have given such instructions on 25 June 2013 if he had already sold his shares to the respondent. He simply had not and clearly the terms and conditions contained in the respondent’s letter of 20 march 2013 applied. The applicant has not established any case for the relief that he seeks. Accordingly the application is dismissed with costs. Hungwe and Partners, applicant’s legal practitioners Dube, Manikai and Hwacha, respondent’s legal practitioners