Glens Removal and Storage Zimbabwe (Private) Limited v Patricia Mandala

The respondent (plaintiff) entered into a storage contract with the applicant (defendant) company, which provided that storage charges were to be paid monthly in advance. A material term stipulated that if storage charges remained unpaid for three consecutive months, the defendant reserved the right to sell part or all of the goods by public auction without notice to defray accrued charges (a parate executie clause). The plaintiff breached this clause by failing to pay for three months. The defendant sold the goods at public auction, used part of the proceeds to defray costs, and kept the balance for collection by the plaintiff. The plaintiff approached the High Court claiming damages for loss of her goods and for pain and suffering. The High Court found in favor of the plaintiff and ordered the defendant to pay US$20,000 in damages for the value of the property wrongfully and unlawfully sold, plus US$1,500 for pain and suffering. The defendant appealed to the Supreme Court. At the hearing, the respondent submitted that the matter raised a constitutional issue regarding whether parate executie violates the access to courts provision in section 69(3) of the Constitution of Zimbabwe. The matter was referred by consent to the Constitutional Court.

• Whether parate executie offended the 'access to the courts' provision in the former Constitution of Zimbabwe, namely section 18(9) as read with section 16(7)
• Whether parate executie offends the 'access to the courts' provision in the current Constitution, namely section 69(3)
• Whether section 69(3) of the Constitution has retroactive effect to apply to contracts concluded and executed before the Constitution came into operation
• Whether the Constitutional Court should outlaw parate executie on the grounds that it is against public policy and has no place in modern jurisprudence

It is declared that parate executie is part of Zimbabwean common law and does not contravene section 69(3) of the Constitution of Zimbabwe as being contrary to public policy in the context of the right of access to the courts. There shall be no order as to costs.

Parate executie is lawful and constitutional under both the former and current Zimbabwean Constitutions. Under the former Constitution, section 18(9) (access to courts) was expressly curtailed by section 16(7)(d) which permitted parate executie as an incident of contract. Section 69(3) of the current Constitution has no retroactive effect and does not apply to contracts concluded and executed before the Constitution came into operation, applying the fundamental principle of statutory construction that substantive rights do not operate retrospectively unless clearly provided. Parate executie does not violate the constitutional right of access to courts because a debtor retains the right to approach the courts to complain about the manner in which parate executie has been carried out and to demonstrate prejudice to their rights. The principle of freedom of contract and sanctity of contractual obligations supports the validity of parate executie clauses freely agreed to by contracting parties.

The court observed that certain non-constitutional issues raised in the defendant's appeal grounds (such as whether the plaintiff's pleadings established a cause of action, whether there was breach of contract, and whether delictual requirements were met) were inadvertently left open by the Supreme Court. These issues fell outside the Constitutional Court's jurisdiction and should ideally have been determined by the Supreme Court before referring only the constitutional issue. The court noted that the defendant's argument that the plaintiff's pleadings established no cause of action appeared unassailable, and that the plaintiff's counsel virtually conceded this point. Chief Justice Chidyausiku commented that 'to allow the debtor to escape liability freely and openly undertaken on the basis of parate executie smacks of duplicity and strikes at the heart of the time honoured principle of the sanctity of the freedom to contract', emphasizing that courts should respect parties' freedom to contract and not seek to rewrite contracts for the parties.

This case is a landmark constitutional decision affirming the validity of parate executie clauses in Zimbabwean law. It establishes that the right of access to courts under section 69(3) of the Constitution does not operate retrospectively and does not invalidate contractual parate executie provisions. The judgment reinforces the principle of freedom of contract and the sanctity of contractual obligations freely entered into by parties. It distinguishes the Zimbabwean constitutional framework from South African jurisprudence on parate executie, establishing an independent approach. The case clarifies that parate executie does not violate access to courts because aggrieved debtors retain the right to challenge the manner in which parate executie was carried out. The judgment provides important guidance on the presumption against retrospective application of constitutional provisions, particularly in relation to substantive rights acquired under existing laws. It also addresses the proper relationship between constitutional interpretation and the common law development of contract principles.