Former President Festus Mogae and Choppies chief executive officer Ottapathu Ramachandran are set to testify in a case in which former Vice President of Zimbabwe Phelekezela Mphoko and his son are suing Choppies over a 51% share stake they lost in the grocery store. A Zimbabwean High Court has set the tone for the trans-boundary trial after it ruled that Choppies has a case to answer in a matter in which Mphoko and Siqokoqela sued Choppies (trading as Nanavac Investments in Zimbabwe) sued Choppies.
Mphoko and his son, Siqokoqela, are demanding more than P280 million as payment for the 51% shares they held before they were divested of their entire shareholding by the Choppies. It emerged in a letter addressed to Mphoko when the fallout started, Mogae who is former Choppies chairperson wrote: “…My brother (Mphoko), I would like to bring the following facts to your attention: We entered into this partnership with a clear understanding of the shareholding of 93% to Choppies Enterprise and 7% to the Mphoko family, free of charge.” But the Mphokos denied the 7% shares saying they were the majority shareholders in terms of Zimbabwean laws.
In their claim, the Mphokos indicated that the true value of their 51% shareholding in choppies is US$22 585 714.00 (P280,679,443.59). The Mphokos argued that the US$2 900 000 (36,039,170.00), which was paid by Choppies when they were divested from the company is not the true value of the 51% shareholding. Choppies countered the summons by the Mphokos with an exception application on the grounds that the cause of action was vague and embarrassing and that the summons does not disclose a cause of action. An exception, in legal terms, is when a party raises an objection on the grounds that the summons is embarrassing, vague or lack necessary averments to disclose a cause of action. Choppies has since indicated that it will appeal the decision of the High Court.
Commenting on the judgement, Ramachandran insisted that: “It’s an exemption. We applied for a summary judgment. The judge decided against it but we still insist on exemption from higher court.” Court records before the Bulawayo High Court show that the contention by Choppies is that the Mphokos claim is contradictory and inconsistent in that it seeks a “declaration of invalidity without a tender of the amount (US$2 900 000) they allege to have received under duress.” Choppies contend that Mphokos ought to have sought a set-off against the true value of the shares.
In his judgement, Bulawayo High Court Judge Justice Martin Makonese found that the contradiction which is alleged by Choppies “does not arise from the amended declaration.” “It would appear to me that the alleged contradiction appears from defendants’ (Choppies) own perception of what the plaintiffs (Mphokos) must have pleaded,” he said. This, the judge said, is not the purpose of an exception. “It is evident that the declaration is understandable and contains nothing which contradicts the averments in the declaration,” said Makonese. He said assertion by Choppies that the Mphokos ought to have tendered the sum of US$2 900 000.00 or to have pleaded set-off in respect of a portion of the value of the 51% is a matter the Choppies may raise in their plea. Makonese said the position taken by Choppies amounts to a defence to the claims.
“Even then, it may be a partial defence to be raised and dealt with at trial. This does not invalidate the pleaded cause of action. I must emphasise that the purpose of an exception is to set aside a pleading among other reasons, where it is vague and embarrassing or inconsistent,” said Makonese. Choppies had also argued that summons by the Mphokos is contradictory in that a declaration of invalidity of the deed of settlement leads to restitutio in integrum or set-off of what has already been received against the true value of the shares. Commenting on this, Makonese said: “I am in no doubt that any finding on the status of the contract arrived by a court at trial would be decided on the basis of the evidence led.”
He added that; “t is pertinent to observe here that in terms of section 8 of the General Laws Amendment Act (Chap 8:07) it is provided that no contract shall be void or voidable by reason merely of laesio enormis sustained by either of the parties to the contract.” A laesio enormis is a legal doctrine that gives a contracting party the ability to rescind an agreement if the price of exchange is less than a certain sum (for instance one half, or two thirds) of its actual value. The judge found that “the doctrine of laesio enormis gives a contracting party the ability to rescind an agreement if the rice of exchange is less than a certain sum (for instance one half, or two thirds) of its actual value.”
He said the doctrine; “This principle was developed as a way to ensure that people received a just (pretuim) or price in exchange, as opposed to the view that the parties to an exchange were entitled to try to outwit each other.” The judge found that the Mphokos have pleaded a complete cause of action. “The material facts upon which the cause of action for duress is based have been pleaded,” he said. He further indicated that the Mphokos have pleaded facts upon which if they are able to prove with evidence, they may establish duress or undue influence.
“The exception on the grounds that the cause of action in relation to duress is vague and embarrassing has no merit. These are matters to be resolved by evidence,” said Makonese. Dismissing Choppies application and paving the way for the trial, Makonese said: I am satisfied that the excipients (Choppies) have failed to discharge the onus to show that the pleadings are vague and embarrassing and that they would be prejudiced in any way.” He concluded that: “The cause of action is sufficiently set out in the summons and declaration.”
