Winnercon (Pvt) Ltd v Brain Ndlovu

The respondent (Brain Ndlovu) entered into a consultancy agreement with the appellant (Winnercon (Pvt) Ltd) whereby he was to receive a percentage of the value of a contract between the appellant and the Gwanda Community Share Ownership Trust. On 5 February 2014, the appellant and the Trust signed a written contract worth US$268,480 for the supply of materials and construction of science laboratories at Selonga, Sibonga and Gungwe High Schools. The appellant performed the contract in part and was paid US$66,236.69 by the Trust. The appellant paid the respondent US$3,340 as fees for his services. The respondent claimed he was entitled to 12% of the contract value (US$79,470 total, with US$10,708.49 being 12% of the amount paid), while the appellant contended the agreement was for only 4% based on a verbal agreement. The magistrate's court granted judgment in favor of the respondent for US$4,607 (being the difference between what was paid and what was owed). The appellant appealed.

• Whether the respondent was entitled to a commission of 12% or 4% of the value of the contract
• Whether the respondent proved his case on a balance of probabilities
• Whether there was a written agreement between the parties regarding payment of 12% commission
• Whether the signatory (Tendai Garikai) had authority to bind the appellant to the agreement
• The proper interpretation of the written contract between the parties

The appeal was dismissed with costs.

The binding legal principle established is that written contracts must be interpreted by giving the ordinary grammatical meaning to the words used, and where percentage rates are not expressly stated, courts may adopt a contextual interpretation of the figures contained in written agreements to determine the parties' intentions. In civil disputes, the standard of proof is on a balance of probabilities, and a party succeeds when the evidence presented is sufficient to tilt the scales in their favor. Written evidence of contractual terms will prevail over assertions of contrary verbal agreements where the written evidence clearly demonstrates the parties' intentions.

The court made reference to the principle from Secretary for Justice & Constitutional Affairs v A.Nass & Co(Pvt) Ltd 1981 ZLR 427 regarding when terms can be implied in contracts - that a term can only be implied if it is necessary to give efficacy to the contract, applying the 'officious bystander' test. While this principle was cited, it was not strictly necessary for the determination of this case as the court found the terms were evidenced in the written agreement itself through contextual interpretation rather than by implication. The court also noted the appellant's alternative argument that Tendai Garikai acted outside his mandate to defraud the appellant, but did not need to address this issue in detail given the clear documentary evidence supporting the respondent's claim.

This case reinforces the principles of contractual interpretation in Zimbabwean law, particularly the application of contextual interpretation when analyzing written agreements. It confirms that in civil disputes, parties must prove their case on a balance of probabilities and that courts will give effect to the clear intentions of parties as evidenced by written contracts, even where specific percentages are not expressly stated but can be derived from the figures contained in the agreement. The case also demonstrates the court's willingness to uphold lower court decisions where the evidence clearly supports the findings made.