Lovemore Mangezi v Tolrose Investments (Private) Limited and Swimming Pool & Underwater Repair Company (Private) Limited

The plaintiff, a mining service provider specializing in regularizing mining paperwork, was hired by the defendants in July 2015 to assist them in regaining control of their gold mining claims at Glencairn Mine. The defendants' mining activities were being illegally disrupted by Xelod Investments, which had illegally transferred the defendants' gold mining claims and taken physical control of the mining operations. The parties entered into a Service Level Agreement dated 25 July 2015, whereby the plaintiff was to procure the return of the illegally transferred mining claims, ensure legal removal of Xelod from the mine, and ensure unhindered access and control to the defendants. In return, the defendants agreed to pay a success fee of US$350,000.00 payable in installments equivalent to one kilogram of gold per month, with the first installment due 60 days after gaining unhindered control. The plaintiff alleged he discharged his mandate in full by mid-April 2016, when the defendants regained control of the mine. An Addendum signed on 1 November 2016 confirmed the plaintiff had successfully discharged his mandate and restructured the payment schedule. Despite this, the defendants only paid US$10,000.00 of the total fee. The defendants claimed they cancelled the agreement in February 2017 due to alleged breach by the plaintiff, asserting that their access remained hindered by Xelod directors.

• Whether the plaintiff discharged his mandate in terms of the Service Level Agreement
• Whether the defendants are indebted to the plaintiff in the sum claimed
• Whether the Service Level Agreement and the Addendum thereto were validly terminated
• Whether the defendants could rely on a defense not specifically pleaded in their plea
• The proper interpretation of the parties' contractual intentions

The court ordered: (1) The 1st and 2nd defendants to pay the plaintiff the sum of US$340,000.00 being the amount due in terms of the Service Level Agreement of 27 July 2015 and the Addendum of 1 November 2016, together with interest at the prescribed rate from 1 November 2016 to the date of payment in full; (2) The defendants to pay the plaintiff's costs of suit.

The binding legal principles established are: (1) When interpreting contracts, courts must determine the intention of parties from the ordinary and grammatical meaning of the words used in the written agreement, which serves as the exclusive memorial of the transaction (applying Union Government v Vianini Pipes); (2) A defense must be specifically pleaded in accordance with Order 18 r 116 of the High Court Rules, 1971, and a defendant cannot rely on a defense at trial that was not pleaded or introduced by amendment; (3) Where parties execute an addendum to a contract that expressly confirms full discharge of contractual obligations, this constitutes binding acknowledgment of performance; (4) A contract that has already been discharged through full performance cannot subsequently be cancelled - such purported cancellation has no legal effect; (5) Post-performance conduct, such as making payments after the alleged date of performance, constitutes acknowledgment by conduct that contractual obligations were fulfilled; (6) A party's admissions in sworn affidavits in other proceedings are admissible and can be used to establish facts in subsequent litigation; (7) Where a party deliberately conceals material information that explains the true cause of their predicament, adverse inferences may be drawn against that party.

The court made several non-binding observations: (1) The court took judicial notice of the defendants' failure to file a counterclaim to recover the alleged payment of US$24,427.00, which raised questions about the credibility of the defendants' claim that such payment had been made; (2) The court observed that the plaintiff was a type of "fixer" of problems in the mining industry, providing context for the nature of mining consultancy services; (3) The court noted that internal company issues between the defendants and Xelod directors (relating to shared shareholding and directorship) likely explained why Xelod directors resumed occupancy after April 2016, matters to which the plaintiff would not have been privy; (4) The court commented favorably on the plaintiff's demeanor as a witness, noting he made a very good impression, remained calm, and gave consistent evidence, while the defendants' witness struggled under cross-examination; (5) The court characterized the defendants' concealment of the consent order showing Rushwaya's continued involvement in the defendant companies as deliberate; (6) The court observed that the defendants' plea was "ambiguous and confusing" in simultaneously alleging both non-performance and full performance of the contract.

This case is significant in Zimbabwean contract law for several reasons: (1) It reinforces the principles of contractual interpretation, emphasizing that clear and unambiguous contractual language determines the parties' obligations; (2) It demonstrates the importance of pleadings in civil procedure, holding that defenses not specifically pleaded cannot be relied upon at trial in accordance with Order 18 r 116 of the High Court Rules, 1971; (3) It illustrates how a party's own admissions (whether in addenda to contracts or in affidavits in other proceedings) can be used against them to establish performance of contractual obligations; (4) It shows that attempted cancellation of a contract that has already been discharged has no legal effect; (5) It demonstrates the court's willingness to draw adverse inferences from a party's failure to disclose material information; and (6) It confirms that conduct post-performance (such as making payments) can constitute acknowledgment of performance and bar later claims of breach. The case also provides guidance on the enforceability of "success fee" arrangements in the mining consultancy sector.