Edition 3 of 2014


Extracti ng certainty from ambiguity

Logic would suggest that once an agreement is reduced
to writing there should be very little controversy as to its
meaning and efficacy. Sadly, disputes over the
interpretation of contracts are pervasive and often quite
intractable. In Zimbabwe Music Rights Association
v ZBC HH-248-12, BERE J laments, “It never ceases to
amaze me how parties who on their own initiatives enter into
contractual agreements end up creating unnecessary complications
in the interpretation and implementation of such agreements.” It
should come as no surprise that, given the important
role of contracts play in modern day commerce, our
Courts have had to expend much time and energy,
ascertaining and, hence, effectuating the intention of
contracting parties.
It has been repeatedly held that in construing every kind
of written contract the Court must give effect to the
grammatical and ordinary meaning of the words used
therein. See Scottish Union & National Insurance
Company Ltd v Native Recruiting Corporation Ltd
1934 AD 458 at 465. If the grammatical and ordinary
sense of the words used in a written contract lead to
some absurdity or some repugnance or inconsistency
with the rest of the instrument, then the Court may
modify the words so as to avoid that absurdity and
inconsistency, but no further. See Nu Naks (Pvt) Ltd v
J W Jaggers Wholesalers (Pvt) Ltd & Anor HH-156-
The idea is to give effect to the intention of the
contracting parties and not, through the process of
interpretation, conclude a new agreement for the said
parties. However, as pointed out by GOWORA J in
Bitumat Ltd & Anor v Paramount Motors (Pvt) Ltd
& Anor HH-129-12, there are instances where in
determining the mutual intent of the parties the Court
may disregard written provisions in the contract that
through fraud, mistake or accident cause the contract to
fail to express the true mutual intention of the parties.
Such reconstruction of the contract, however, may not
go beyond implementing the mutual intent of the parties.
Ordinarily, the Courts are quite averse to considering
extrinsic evidence in the interpretation of written
contracts. In Lowrey v Steedman 1914 AD 532 at 543
it was held, “The rule is that when a contract has once been
reduced to writing, no evidence may be given of its terms except the
document itself. . . .” Additionally, and for a long time, the
Courts have treated the contents of a written agreement
as sacrosanct. As pointed out in Absa Technology
Finance Solutions (Pty) Ltd v Michael's Bid A
House CC and Another 2013 (3) SA 426 (SCA), a
Court may not admit evidence as to what the parties to a
contract intended it to mean if that has the effect of
changing the terms of which they clearly agreed [in

The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and
every slip was fatal. It takes a broader view to-day. A promise may be lacking, and yet the whole writing may
be "instinct with an obligation," imperfectly expressed. If that is so, there is a contract.
Benjamin Cardozo, Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91; 118 N.E. 214 (1917).

Edition 3 of 2014

However, where the contract does not give a clear
meaning to the terms of the contract then the court may
engage in the surrounding circumstances of the case to
ascertain the meaning of those terms. There has been a
growing trend toward the inclusion of extrinsic evidence
in order to aid the process of interpretation. The law as
it now stands is that the Court may give regard, and due
weight, to extrinsic evidence pertaining to the
circumstances surrounding a written agreement in order
to resolve any ambiguity that may have arisen in the
interpretation of the agreement. See Old Mutual
Properties Investments v Metro Intl (Pvt) Ltd &
Anor ZLR 2006 (1) 442 (H).
While evidence may be led to clarify ambiguous terms
of the contract it should not be forgotten that such
course of action must be resorted to with some
reluctance vide Delmas Milling Co Ltd v Du Plessis
1955 (3) SA 447 (A) at 455. More importantly
interpretation is a matter of law, not of fact, and
accordingly interpretation is a matter for the court, not
for witnesses, whether they are experts or not. See
KPMG Chartered Accountants (SA) v Securefin
LTD and Another 2009 (4) SA 399 (SCA)
Recently, the South African Supreme Court of Appeal
had the opportunity to spell out the modern approach
to interpreting written contracts. In the case of
Bothma-Batho Transport (Edms) Bpk v S Bothma
& Seun Transport (Edms) Bpk 2014 (2) SA 494
(SCA) it was clarified that while the process of
interpretation starts with words, it does not stop at the
literal meaning extracted therefrom. All relevant context
surrounding the contract must be considered.
The former distinction of background and surrounding
circumstances is no longer relevant and more
importantly the process of interpretation is no longer in
stages, but is now unitary.
In essence the Courts are now urged to take an “all-
inclusive” approach in interpreting contracts. Put
differently, the words contained in a contract are just as
important as the context in which the contract was
concluded. Interestingly, context has always been an
integral part of interpretation. There is an age old latin
maxim, ex praecedentibus et consequentibus optima fit
interpretatio which translates to “the best interpretation is
made from the context.” See the Indian case of Gram
Panchayat, Kanonda v. Director, Consolidation of
Holdings AIR 1990 SC 763).
Lastly, the interpretation of contracts has to be alive to
common sense and the exigencies of business. In Natal
Joint Municipal Pension Fund v Endumeni
Municipality 2012 (4) SA 593 (SCA) at para 18 it was
highlighted a sensible meaning is to be preferred to one
that leads to insensible or “un-business” like results or
undermines the apparent purpose of the document. In
England if the words of a contract have ambiguous
meanings, the court will interpret the contractual terms
in a manner that most accords with "business common
sense". See Rainy Sky SA and others v Kookmin
Bank [2011] UKSC 50. A similar line of reasoning is
implicit in in the Zimbabwean case of Gariya Safaris
(Pvt) Ltd v Tsholotsho Rural District Council &
Anor HB-64-13 wherein the Court rejected an
interpretation that did not make any business sense, id
est a perpetual contract.

‘Blessed i s the mending hand. ’
In litigation it is not unusual for a party to find it
necessary to seek a revision of his or her pleadings.
Order 20 Rule 132 of our High Court Rules [1972]
states that a Judge, at any stage of the proceedings, may
allow either party to alter or amend his pleadings in such
manner and on such terms as may be just and necessary
to ensure the determination of the real question in
controversy between the parties. Ultimately the rules
that allow for amendments of pleading are designed to
promote ends of justice and not to defeating them.
WESSELS J in Whittaker v Roos and Another, 1911
T.P.D. 1092 observes that it would be a grave injustice
if matters before the Courts where to fail due to a slip of
Edition 3 of 2014

the pen, an error of judgment, or the misreading of
pleadings by counsel or litigant. The idea of allowing the
amendment of pleadings at any stage is to ensure that
the Court is given an opportunity to adjudicate on the
real facts and issues in contention. Where there has been
an error in the pleadings it is only just and proper that
party burdened by such error is given an opportunity to
re-state or re-frame his case.
In Efrolou (Pvt) Ltd v Muringani HH-112-13
MAFUSIRE J points out that the general rule is that an
amendment of a pleading in an action will always be
allowed unless the application is mala fide or the
amendment would cause an injustice or prejudice to the
other side which cannot be compensated by an order of
costs. Generally, our Courts allow amendments quite
liberally. This liberality is only affected where the
amendment would cause considerable inconvenience to
the Court or prejudice to a party, or where there is no
prospect of the point raised in the amendment
succeeding or where the matters in the amendment are
vague and embarrassing. See UDC Ltd v Shamva
Flora (Pvt) Ltd 2000 (2) ZLR 210 (HC)
While it is true that our Courts readily allow the
amendment of pleadings, it is not to be understood to
mean that amendments will be permitted without due
thought and consideration. The party seeking an
alteration of his pleadings is obligated to provide cogent
reasons why the proposed amendment is necessary. In
Zarug v Parvathie NO 1962 (3) SA 872 (D) at 876C
H HENOCHSBERG J held, “An amendment cannot
however be had for the mere asking. Some explanation must be
offered as to why the amendment is required and if the application
for amendment is not timeously made some reasonably satisfactory
account must be given for the delay.”
The true position of the law is that, it is incumbent on
the party seeking to amend his papers to proffer some
explanation why the amendment is necessary and if late,
why the request was not made timeously. This
explanation is necessary in order for the Court to
investigate the bona fides of the request and ensure that
its processes are not abused. In addition, it is important
that the proposed amendment introduces a triable issue.
Requests to amend should not be designed to annoy the
opponent or raise frivolous issues. This point was aptly
explained in Trans - Drakensberg Bank Ltd (Under
Judicial Management) v Combined Engineering
(Pty) Ltd & Another 1967 (3) SA 632 (D) wherein at
641A CANEY, J said: “Having already made his case in his
pleading, if he wishes to change or add to this, he must explain the
reason and show prima facie that he has something deserving of
consideration, a triable issue; he cannot be allowed to harass his
opponent by an amendment which has no foundation. He cannot
place on the record an issue for which he has no supporting
evidence, where evidence is required, or, save perhaps in exceptional
circumstances, introduce an amendment which would make the
pleading excipiable.”
As a general rule, a party cannot amend his or her
pleadings in such a manner that would make them bad
at law or patently objectionable. Furthermore, the issue
raised in the amendment should be necessary for the
proper adjudication of the matter at hand. It would be
offensive to the Court to seek an amendment that
serves no other purpose than to harass, embarrass or
pointlessly prolong the proceedings. See the sentiments
of SELIKOWITZ J in Benjamin v Sobac South
African Building and Construction (Pty) Ltd 1989 (4)
SA 940 (C) at 958B.
It is also important to note that there are circumstances
were it is not permissible to seek an amendment.
Generally, you cannot amend a nullity. If the pleading is
suffering from some material defect that makes the
pleading invalid at law, ordinarily such pleading cannot
be amended. The reason is simple, you cannot fix what
does not exist. This point was made in J D M Agro-
Consult & Marketing (Pvt) Ltd v Editor, The
Herald & Anor 2007 ZLR (2) 71 (H) wherein the
Court held inter alia that the amendment of the
summons at the pre-trial conference was without effect,
as the party named in the said summons as the second
defendant did not exist at the time that the summons
was issued and served. The citation of a non-existent
party in summons is fatal.
Similarly, a plaintiff cannot seek to amend its pleadings
in summary judgement proceedings. This point was
Edition 3 of 2014

aptly made in CABS v Ndahwi HH-18-10 wherein
MAKARAU JP (as she was then) opined that summary
judgment is a drastic remedy that is based on the
supposition that the plaintiff's claim is beyond
impeachment on any material basis. Consequently, for
the plaintiff to seek an amendment is an implicit
admission that the papers as they stand suffer from
some inherent defect. Such an admission is inconsistent
with the general assumptions that come with summary
judgement proceedings.
It is critical to also highlight that the procedure of
amending pleadings should never be abused. The Courts
are likely to refuse requests to amend that are motivated
by some ulterior motive or are designed to gain some
tactical advantage over the other party. For instance it is
improper for a party to deliberately refrain until a late
stage from bringing forward his amendment with the
purpose of catching his opponent unaware, see
Florence Soap & Chemical Works (Pty.) Ltd v Ozen
Wholesalers (Pty.) Ltd, 1954 (3) SA 945 (T).

When will a resignation become constructive dismissal ?
It is not uncommon to see a resignee turn around and
claim constructive dismissal. Resignation has quite
sudden and often drastic consequences that many do
not consider before abandoning an employment
contract. In an effort to reverse or ameliorate these
consequences some resignees are often tempted into
claiming constructive dismissal. As is revealed below, it
is one thing to claim constructive dismissal, and quite
another to prove it.
The legal consequences of a resignation are well known
and settled in our law. In Muzwengi v Standard
Chartered Bank & Anor 2000 (2) ZLR 137 (H)
SMITH J, relying on the decision in Rustenburg Town
Council v Minister of Labour and Ors 1942 TPD
220, held that a letter of resignation constitutes a final
act of termination by an employee, the effects of which
he cannot avoid without the employer’s consent. An
employer to whom resignation has been tendered by the
employee is under no obligation to expressly accept it
nor does the employer have the option to reject the
notice of resignation, see Lee Group of Companies v
Elder 2004 (2) ZLR 193 (S).
Resignation is a repudiation of the employment contract
by the employee and once that happens, it ordinarily
becomes irrelevant whether or not the said employee
has been dismissed unlawfully or otherwise. One does
not need to dismiss an employee who has tendered a
resignation, see Lee Group of Companies v Elder
supra. It often occurs that an employee resigns and
thereafter purports to withdraw such resignation.
Generally, once communicated a resignation cannot be
withdrawn. See National Union of Metalworkers of
South Africa obo Mofokeng and others v Afrox Ltd
[2013] 4 BALR 378 (MEIBC) wherein it was decided
that an employer's refusal to accept withdrawal of
resignations was correct and did not constitute dismissal.
However, in spite of what is stated above,
CHINHEGO J in Tafuma v Tudor House
Consultants (Pvt) Ltd 2002 (2) ZLR 1 (H) points out
that an employee who resigns may later assert the
wrongfulness of the termination if he can show that the
resignation was a constructive dismissal because he was
coerced into resigning. What makes a resignation
constructive dismissal is the fact that such resignation
was induced by some coercion or force. “It goes without
saying that a resignation must be voluntary and not due to
pressure exerted by the employer on the employee.” per
SANDURA JA in his dissenting judgement in
Retrenched Employees of National Breweries
Limited as Represented by Nathan Mudondo v
National Breweries Limited & Anor N.O. SC
Where a person claims constructive dismissal after a
resignation it is incumbent on him to lay out clearly and
distinctly the circumstances that gave rise to the fear or
force that induced the resignation. See Muzengi v
Standard Chartered Bank & Anor 2000 (2) ZLR 137.
Broad generalised allegations of discomfort will not
Edition 3 of 2014

suffice. The Court is enjoined to investigate each claim
of constructive dismissal and such investigation is not
possible where there is a dearth of information.
It is also important to note that before a resignation is
deemed to be a constructive dismissal it must be
demonstrated that the force or coercion that motivated
the resignation was significant and not trifling. As
pointed out by DOVE-WILSON JP in Steiger v Union
Government (1919) 40 NLR 75 "Force and fear will annul
an engagement when the fear is not vain or foolish, but such as to
overcome a mind of ordinary firmness.” Put differently, in
order to make out a case of constructive dismissal, it is
obligatory upon an employee who has resigned to show
that he was subjected to such duress, pressure, force or
the threat thereof, or that the work environment created
by the employer had become so unbearable, that he was
left with no option but to resign. See Dalgleish v
Ampar (Pty) Ltd t/a Sel Energy (1995) 11 BLLR 9
(IC) and Braun v E August Laepple (Pty) Ltd (1996)
6 BLLR 724 (IC).
It cannot be disputed that where a resignation is induced
by violence such resignation constitutes unfair dismissal.
Such was the case in Chimupunga v Leopard Rock
Hotel LC/MC/4/2009 wherein the employee resigned
after an assault and a lengthy interrogation. Such
resignation was held to be constructive dismissal. See
also Mangame v TM Supermarket LC/H/238/2007
in which case it was found that the employee had
tendered his resignation letter upon force being
perpetrated by the police, resultantly the employee had
been constructively dismissed by the employer as
envisaged by Section 12 B (3)(a) of the Labour Act.
There are also circumstances where the employer
changes the conditions of employment or working
conditions of employee in a manner that is totally
unacceptable and induces the said employee to resign.
See Groenewald v Cradock Munisipaliteit 1980 ILJ
269 (E).
These changes are often brought about with the aim of
forcing the employee to resign. It is however important
to note that such changes have to be significant and
leave the employee with no option but to resign. Even
then, the employee cannot unilaterally resign without at
least engaging the employer in regard to the changes. In
Nainar v Country Meat Market [2013] 6 BALR 671
(CCMA) it was found that an employee who had
resigned without raising any complaints, and
subsequently claiming constructive dismissal, had failed
to prove that working conditions had become
There are scenarios where an employee resigns to avoid
a disciplinary hearing or the consequences thereof. It is
not advisable for an employer to suggest that the
employee resign in such circumstances. Any resignation
motivated by the employer is viewed suspiciously "A
resignation will be treated as a dismissal if the employee is invited
to resign and it is made clear to him that, unless he does so, he will
be dismissed." page 35 Robert Upex: Termination of
Employment 2
Edition. The employee must on his
own volition tender a resignation. In Robertson v
Securicor Transport Ltd [1972] IRLR 70, the
employee had broken a company rule by signing for a
container which had not been received. When this was
discovered, he was given the option of resigning instead
of being dismissed, and he chose the respectable course.
It was held that he had been dismissed nonetheless. The
running thread seems to be that, if the employer
motivates the resignation the Courts are more inclined
to view the resultant resignation as a dismissal.
Finally, because constructive dismissal is an
extraordinary and special form of dismissal, it is not
easily accepted by the Courts and the employee has to
satisfy the Court about the existence of special
circumstances and facts he or she alleges. See Jooste B
v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629
(LAC). In other words the onus rests squarely on the
doorstep of the employee who claims that his
resignation was a constructive dismissal. It is therefore
important that such claims are not made lightly.

Edition 3 of 2014

A necessary evil

The Constitution is a document unlike any other. It
delimits and defines the superstructure of the country
and sets out the fundamental rules that govern our
socio-political existence. Any judicial pronouncement
on the Constitution has the most profound effect on
the country’s legal landscape. Consequently, the
process of constitutional adjudication has to be
tempered with caution and circumspection. This need
for prudence during constitutional adjudication is
encapsulated in Chief Justice Marshall's oft-quoted,
cautionary dictum, "we must never forget that it is a
Constitution we are expounding," McCulloch v.
Maryland, 17 U.S. 316, 407 (1819). Accordingly,
considerations of judicial policy expressed in the
concepts of ripeness and constitutional avoidance
have been developed to ensure that only the deserving
constitutional matters are heard and adjudicated.
Put simply, the constitutional avoidance doctrine
requires that Courts always try to resolve a matter on
non-constitutional grounds, and only interpret the
Constitution when no other option remains. If a
matter can be resolved by relying on a statute or the
common law then that is the preferable course which
should be followed. This rule is now firmly part of
South Africa’s constitutional practice and was
succinctly enunciated by KENTRIDGE AJ in S v
Mhlungu & Ors 1995(3) SA 867 (CC), at para 59
wherein he said, “I would lay it down as a general principle
that where it is possible to decide any case, civil or criminal,
without reaching a constitutional issue, that is the course which
should be followed.”
The constitutional avoidance doctrine, as a judicial
policy, is typical of country’s with written constitutions
and has its roots in the seminal case of Ashwander v.
Tennessee Valley Authority, 297 U. S. 288, 346
(1936). In the aforementioned matter Justice Loius
Brandeis crystallised the avoidance doctrine in seven
rules designed to ensure that the Court does not
unknowingly, through unnecessary constitutional
interpretation, encroach into the domain of the other
branches of government under the separation of
powers principle. These rules of constitutional
adjudication, which together inform the doctrine of
constitutional avoidance, are:
i) The court will not pass upon the Constitutionality of
legislation in a friendly, non-adversary proceeding…
ii) The court will not anticipate a question of Constitutional
law in advance of the necessity of deciding it …
iii) The court will not formulate a rule of Constitutional law
broader than is required by the precise facts to which it is to
be applied...
iv) The court will not pass upon a Constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be
v) The court will not pass upon the Constitutionality of a
statute unless the plaintiff was injured by operation of the
vi) The court will not pass upon the Constitutionality of a statute
at the instance of one who has availed himself of its benefits…
vii) Even if serious doubts concerning the availability of an act of
congress are raised, the court will first ascertain whether a
construction of the statute is fairly possible by which the
question may be avoided’.

The rules outlined above were designed protect the
Constitution and not necessarily to discourage
constitutional litigation. As pointed out in the South
African case of Zantsi v Council of State, Ciskei,
and Others 1995 (4) SA 615 (CC) constitutional
avoidance allows the law to develop incrementally. In
view of the far reaching implications attaching to
constitutional decisions, it is a rule which should
ordinarily be adhered to by courts before whom
constitutional issues are raised. If Courts were to make
pronouncements on each and every constitutional
issue raised it could potentially muddy the waters of
constitutional jurisprudence and thereby make the law
uncertain and ever-morphing.

An apt example of the doctrine of avoidance in action
can be found in the case of Kerkhoff v Minister of
Justice and Constitutional Development and
Others 2011 (2) SACR 109 (GNP) In that matter the
Court found it irregular for a litigant to mount a claim
for access to certain information on the back of on a
Edition 3 of 2014

Author’s Contact Details
Address : PO Box CH 860 Chisipite
Harare Zimbabwe
Email : zhuwarara@lawyer.com
Phone : +263 773 853 536
The information and any commentary on the law contained
in this publication is designed for lawyers and provided free
of charge. The publication aims to inform and generate
discussion and debate amongst legal practitioners. While
every reasonable effort is made to make the information and
commentary accurate and up to date legal practitioners are
still urged to do their own research and form their own
opinions. Any part of this publication may be reproduced as
long as the author is acknowledged and informed.

Tawanda Zhuwarara

Constitutional provision when there was an Act of
Parliament specifically promulgated to see the
realisation of the same right.

Additionally, the Courts are also quite averse to
hearing matters that are not ripe for adjudication. The
doctrine of ripeness serves the useful purpose of
highlighting that the business of the Court is generally
retrospective; Courts deal with situations or problems
that have already ripened or crystallized, and not with
prospective or hypothetical issues. See Ferreira v
Levin NO & Ors; Vryenhoek & Ors v Powell NO
and Others 1996 (1) SA 984 (CC) at para 199. It
would be a waste of the Court’s time to engage in
constitutional adjudication where there is no
controversy or issue. As clearly articulated in the Swazi
case of Nombuyiselo Sihlongonyane v Mholi
Joseph Sihlongonyane (470/2013A) [2013] SZHC
“One of the key or primary principles of Constitutional
adjudication is that the issue to be determined or question to be
answered by the court must be a real and factual one and must
be between real people rather than hypothetical, academic or
Ripeness and constitutional avoidance are sometimes
inter-related. If it is possible to decide a matter without
determining the constitutional validity of legislation or
other action, the principle of avoidance may lead to
the conclusion that the constitutional question is not
ripe to be determined. See generally Goldberg v
Provincial Minister of Environmental Affairs
&Development Planning and Others (15927/12)
[2013] ZAWCHC 185.

The obvious question then is; when is matter
considered to be merely academic or hypothetical in
nature? In JT Publishing (Pty) Ltd & Others v
Minister of Safety and Security & Others 1997 (3)
SA 514 (CC) the Court declined to entertain a matter
where the enquiry could not produce any concrete or
tangible result beyond a bare declaration. In
Kachingwe & Ors v Minister of Home Affairs &
Ors 2005 (2) ZLR 12 (S) the Court made it clear that
it would entertain a matter where a claimant is able to
satisfy the Court that he or she has, a direct interest
that is not too remote from the relief sought, a
substantial interest that is not too abstract or
academic, a real interest not a hypothetical one and a
sufficient or patrimonial interest in the matter.
In summation it would be wise to introspect before
raising constitutional issues. Where a matter can be
disposed of using the current statutory frame work or
the common law then that is the proper way to
proceed. Additionally, no matter how salacious a
constitutional point is, it bears no fruit to raise such
point before it is ripe or can offer real relief for your

Sign up to vote on this title
UsefulNot useful