KAMBA TRAVEL AND TOURISM (PVT) LTD v SIBANDA (190 of 2025) [2025] ZWHHC 190 (11 February 2025)

1 HH-190-25 HCHC 597/24 KAMBA TRAVEL AND TOURISM (PVT) LTD Versus NKOSILATHI SIBANDA HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHIRAWU-MUGOMBA & MANZUNZU JJ Harare, 11 February 2025 COMMERCIAL CIVIL APPEAL A NYAMUKONDIWA, for the appellant Respondent in person CHIRAWU-MUGOMBA: This matter was placed before us an appeal from the Magistrates Court Commercial Division. At the end of the hearing we gave judgment ex tempore in favour of the appellant as follows:- 1. The appeal succeeds with costs. 2. The judgment of the court a quo is set aside and substituted with the following: a. The defendant shall pay plaintiff the sum of USD3800 with interest at the prescribed rate calculated from the date of summons to date of payment in full. b. The defendant shall pay costs. We have been requested for reasons and these are they. The background to the matter is as follows. The appellant issued summons against the respondents claiming payment of a sum of USD3,800, interest at the prescribed rate and costs of suit. This claim was based on an acknowledgment of debt signed by the respondent. In his statement of defence, the respondent submitted that he booked air travel tickets on the understanding that a third party was going to pay for them. The appellant convinced him that actual tickets had to be issued since flights were filling up fast. When the funds for paying for the tickets fell through, he had no choice but to cancel them. He was advised by the appellant that there would be a penalty for the cancellation as per the standard procedures. He admitted signing the acknowledgement of debt but said this was under duress and through deception by means of a misrepresentation. He also queried the figures. In his statement he sought to resile from the acknowledgment. The court a quo found in favour of the respondent and in its judgment, the court a quo stated that the appellant did not produce the tickets despite having a chance to do so. Instead, the appellant became fixated on the acknowledgment of debt. The court made a finding that this was signed under pressure and fraudulently and that it was a product of misrepresentation. Accordingly, the court dismissed the appellants claim. Irked by this development, the appellant noted an appeal. The grounds of appeal are couched as follows. Grounds of appeal 1. The lower court grossly misdirected itself in fact when it reached a conclusion that the Respondent signed the acknowledgement of debt under “pressure” yet the evidence shows that he had signed voluntarily. 2. The court a quo erred in law in dismissing the appellant’s claim yet it had been proven, on a balance of probabilities that the respondent owed the sum of US$3800.00, which he was fully aware of, had voluntarily acknowledged, and promised to pay. 3. The court a quo erred in law and in fact when it concluded that the appellant had not challenged the respondent’s defences, yet these defences had been challenged and shown to be reasonably unlikely circumstances. 4. The court a quo erred and misdirected itself when it held that the appellant had fraudulently misrepresented that it had issued tickets. RELIEF SOUGHT 1. Appeal be and is hereby upheld with costs; 2. The Judgment of the Court a quo delivered on the 18th July 2024 be and is hereby set aside and substituted with the following, that: a. The Plaintiff's claim be and is hereby granted. b. Defendant be and is hereby ordered to pay Plaintiff the sum of US$3 800.00. c. Defendant shall pay interest at the prescribed rate of 5% per annum on the US$3 800.00 from the date of Summons to the date of full and final payment. d. Defendant shall pay costs of suit At the hearing, Mr. Nyamukondiwa conceded that grounds of appeal 1 and 2 are similar as they all address the issue relating to the acknowledgement of debt. He also combined grounds 3 and 4 on the assertion that the appellant had not challenged the respondent’s defences. Turning to the grounds of appeal and the submissions by the parties, it is common cause that the respondent signed an acknowledgement of debt. Where parties differ however are the circumstances surrounding the signing. The appellant contends that there is no evidence that there was duress or misrepresentation. On the other hand the respondent contends that there was. It is trite that an acknowledgement of debt is a compromise and it creates new obligations hence a new cause of action. First Merchant Bank of Zimbabwe Ltd v Forbes Investments (Pvt) Ltd & Anor, 2000 (2) ZLR 221 (S), laid down three considerations which define a valid acknowledgement of debt. These are; 1. The acknowledgement must have been made by the debtor. 2. There must be express or tacit acknowledgement of the existence of liability and 3. The acknowledgement must have been made in favour of the creditor or his agent. What the court a quo ought to have considered is the validity of the defence proffered by the respondent, that is whether or not the acknowledgment was tainted by duress and misrepresentation. This is more so in view of the fact that the respondent has not denied signing it. The ‘signer-beware’, rule therefore applies. The celebrated author R. H. Christie in his book, Business Law in Zimbabwe, at p 67, has this to say on the caveat subscriptor rule: “The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were not upheld any business enterprises would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule is therefore that a party to a contract is bound by his signature, whether or not he has read and understood the contract….and this will be so even if he has signed in blank…or it is obvious to the other party that he did not read the document”. Now, under what circumstances do the defences raised by the respondent apply? In International Export Travel vs. Mazambani, HH-195-17, DUBE (JP) had this to say, “The court is being called upon to resolve whether the defendant signed the AOD’s under duress and if undue influence was brought to bear on him. R H Christie in his book Business Law in Zimbabwe 2011 ed @ 82 – 83 says the following on duress; “a contract obtained for or by fear induced by threats of force obviously cannot be allowed to stand, but because of the infinitely variable nature of force, fear and threats the limits of this principle require careful attention. The fear must be such as would overcome the resistance of a person of ordinary firmness, taking into account the sort of person the victim is (e.g. young or old woman.” The author goes on to state that the threat must be of an imminent or inevitable evil. In Broad Tyk v Smuts 1942 TDD 47 @ 52 the court held that the threat must be directed at the party or his family. In Arend and Anor v Astra furnishers (Pty) Ltd 1974 (1) SA 298 (c) @ 305, the court said the following of duress, “It is clear that a contract may be vitiated by duress (metus), the raison d’etre of the rule apparently being that intimidation or improper pressure renders the consent of the parties subject to duress not true consent ……. Duress may take the form of inflicting physical violence upon the person of a contracting party or inducting in him a fear by means of threats.” The case outlines the following as requisites of threats constituting duress, 1. The fear must be a reasonable one. 2. It must be caused by the threat of some considerable evil to the person concerned or his family. 3. It must be the threat of an imminent or an inevitable evil. 4. The threat or intimidation must be unlawful or contra bonos mores. 5. The moral pressure must have caused damage. See also Gbenga – Oluwatoye v Reckitt Beckiser Sa (Pty) Ltd and Another (2016) 371 LJ 902 (LAC). In the case of Muza v Agricultural Bank of Zimbabwe Ltd (22/02/02) [2004] ZW SC 138 the court said the following of duress; “Contracts that are void ab initio by reason of duress are very rare as the duress required to render an agreement void ab initio has to be extremely severe. It has to be so severe as to negative any element of voluntariness such as were a stronger person physically overcomes a weaker person and puts a pen in his hand and forces his hand to write his signature on a written contract.” Duress and undue influence are common law doctrines. A litigant alleging the use of duress and undue influence to induce him to sign a document is essentially saying that he was forced to do the act complained against. Duress has different forms and includes threats of violence, to property, threats of unlawful restraint and economic duress. The requirements for economic duress are, that the person alleging duress must protest. He must show that he had no other viable course of action. Also to be considered is whether he took steps to avoid the forced contract or AOD. See Bpoe Bank Berperk v Van ZYL 2002(5) SA 165 C and the Arend case. A litigant may therefore raise economic duress as a ground for challenging an AOD. This occurs in a commercial setup where the terms of an AOD are accepted and signed for under duress. Undue influence on the other hand is pressure that does not amount to duress. It has to be shown that one party did something that resulted in him getting an unfair advantage. It includes threats to end a relationship. In a nutshell, a litigant wishing to rely on duress and undue influence as a ground for resisting enforcement of an AOD must do more than just allege that he was forced to sign the AOD. He must convince the court that the pressure applied upon him to coerce him to sign was so extreme or severe so as to negative voluntariness and induced him to sign the document without his free will. The influence averted to must be shown to be unscrupulous and that it weakened his power to resist. Further, that he would ordinarily not agree to the signing. He must show that he protested and took steps to avoid the forced action or contract. The threats alleged must be proved to be the motivation for the signing and the threat must be of some imminent or an inevitable evil. The defendant’s fear must be reasonable. Where a person claims that he was forced to sign an AOD through economic duress, he is required to show that he was forced to accept the terms of the AOD and sign it because of his economic situation by a person who was in a more economically stronger than him. An AOD signed under duress and undue influence renders the AOD invalid and unenforceable.” During a lengthy exchange with the respondent at the hearing, the court pointed out to him the evidence pertaining to his defence. This evidence shows that he signed the acknowledgment for the sake of what he termed peace, that his world was falling apart and that he was worried about the impact of the failed transaction on the business of the appellant. Nowhere did he allege that there was extreme force made to bear upon him. In other words, his assertions are not supported by evidence and we conclude that the court a quo erred in its finding that the acknowledgment was signed under duress and misrepresentation. The assertions by the respondent did not vitiate the acknowledgment. The second ground of appeal relates to the finding that the appellant failed to challenge the respondent’s defence, in other words, it failed to challenge the assertion that no tickets were issued. In our view, that is a non-issue that the court paid heed to. The cause of action is very clear. It is the acknowledgment of debt and not the fact whether tickets were issued or not. The acknowledgment created the obligation, it being a liquid document. Whatever occurred leading up to its signing, we have already found above, did not vitiate it. In our view, the court a quo erred in paying regard to a non-issue. At the time of signing, the respondent did not have the tickets with him and yet he went ahead and signed. He has already stated, is bound by his own signature and not the production or non-production of the tickets. MANZUNZU J: I agree INGWANI CHIPETIWA GROUP OF LAWYERS, Appellant’s legal practitioners Respondent in person