Profert Zimbabwe (Private) Limited v Pioneer Hi-Bred (Zimbabwe) Limited and Daniel Myers and Stanley Kanembirira

The plaintiff sought rectification of a Suretyship Agreement signed on 28 September 2012. The plaintiff alleged that there was a common intention between the parties that the second and third defendants would stand as sureties and co-principal debtors in their personal capacities on behalf of the first defendant. The plaintiff's witness, Mr P.G. Tate, testified that the rectification sought was the deletion of the first defendant as principal and its substitution with the second and third defendants. However, the Suretyship Agreement was only signed by the two defendants as witnesses, not as sureties. None of the second and third defendants produced identity documents, particulars, or utility bills to show they were acting in their personal capacities. The documents produced (exhibits pp 11-20) related only to the first defendant. At the close of the plaintiff's case, the second and third defendants applied for absolution from the instance.

• Whether the plaintiff proved on a prima facie basis that there was a common intention for the second and third defendants to stand as sureties and co-principal debtors in their personal capacities
• Whether the evidence adduced by the plaintiff at the close of its case was sufficient to justify rectification of the Suretyship Agreement
• Whether absolution from the instance should be granted to the second and third defendants
• Whether the proposed rectification would be effective given the unsigned nature of the agreement

The third defendant was granted absolution from the instance. The second defendant was put on his defence based on an undertaking made in the credit facility application on behalf of the first defendant.

For rectification of a suretyship agreement to succeed, the plaintiff must adduce prima facie evidence at the close of its case demonstrating a common intention between all parties that the terms sought to be inserted were actually agreed upon. The proposed rectification must also result in a legally valid and enforceable agreement. Where the evidence fails to establish on a prima facie basis that parties intended certain individuals to stand as sureties in their personal capacities, and the proposed amendment would result in an unsigned and ineffective agreement, absolution from the instance must be granted. The test for absolution is whether, on the evidence adduced, any reasonable court might grant judgment in favour of the plaintiff.

The court observed that the Suretyship Agreement was "riddled with patent errors and cannot pass the test of security or collateral." The court also noted that no explanation was given as to how the document sought to be rectified was found to be compliant with the alleged common intention, given its obvious defects. The court's comment that the second defendant remained liable based on an undertaking in the credit application (which became a contractual term upon acceptance) suggests an alternative basis of liability separate from the suretyship claim.

This case illustrates the strict evidentiary requirements for rectification of contracts in Zimbabwean law, particularly suretyship agreements. It demonstrates that a claim for rectification based on alleged common intention must be supported by prima facie evidence showing that all parties actually intended the terms sought to be inserted. The case also highlights the principle that at the close of a plaintiff's case in a civil trial, absolution from the instance will be granted if no reasonable court could find in favour of the plaintiff on the evidence adduced. The judgment emphasizes the importance of proper documentary evidence (such as identity documents and personal particulars) to establish that parties contracted in their personal capacities as sureties.