Delta Corporation Ltd v Chitkem Security (Pvt) Ltd (HC 3411 of 2015) [2015] ZWHHC 399 (19 April 2015)

1 HH 399-15 HC 3411/15 DELTA CORPORATION LIMITED versus CHITKEM SECURITY (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 20 April 2015 Urgent chamber application T. Mpofu, for the applicant A. K. Muronda, for the respondent MATHONSI J: The applicant, a beverages producing company, enlisted the respondent, a security company, to provide security services by written agreement which commenced on 1 September 2013 and its termination date was 31 August 2014. The applicant says it relocated the agreement thereby enabling the respondent to continue providing service after the expiration of the written agreement. The applicant has now terminated the security services contract and demanded that the respondent should remove its security guards from all its premises as it has now contracted another security company to perform the same exercise starting on 1 April 2015. Commencing a new dispensation on April Fools day was always going to be a tall order indeed for the applicant because the respondent refused to burge and has kept its security guards firmly on the ground resulting in duplication of services by the new security company and the respondent which insists that it is entitled to continue providing security services because the contract was unlawfully terminated. The applicant has now come to court on an urgent basis seeking to bar the respondent from purporting to provide services. It seeks the following relief: “TERMS OF THE FINAL ORDER SOUGHT 1. It is hereby declared that no agreement for the provision of security services subsists as between applicant and respondent and neither party remains with any rights or obligation against the other under this agreement. 2. Respondent be and is hereby interdicted from attending or in any way disrupting the provision of security services to applicant by any third party. INTERIM RELIEF (GRANTED) That pending the determination of this matter, the applicant is granted the following relief: HH 399-15 HC 3411/15 1. The respondent company and all its employees and agents be and are hereby barred from attending at any of applicant’s premises and depots in Zimbabwe for the purpose of rendering any security or related service from the date of service of this order on them. 2. Respondent company is ordered to hand over all stationary and perform all handover procedures to each successor service provider at applicant’s premises and depots in Zimbabwe within 24 hours of service of this order on them”. The applicant has stated through Funwell Gwiza its Audit and Risk General Manager that after notifying the respondent of the termination of the security service agreement it went to tender, a process in which the respondent also participated unsuccessfully, resulting in another security company being contracted to provide security services with effect from 1 April 2015. The respondent would have none of it. Not only did it refuse to remove its guards, it also contested the termination in both this court and the Administrative Court. That endeavour has not yielded any fruits. However the respondent continues to provide service against the will of the applicant resulting in an undesirable situation in which two security companies are falling over each other to render the same service. The respondent admits all that in its opposing affidavit deposed to by Beven Chitongo, its operations director. Chitongo confirms receipt of the termination of the contract on 27 March 2015 but argues that the applicant employed an email which had been in disuse since 2007. He also confirms that despite communication of the termination, “the respondent’s personnel are still in situ” and that “the relationship between the parties is contractual”. Chitongo maintains that the respondent has resorted to such unusual tactics because there was no lawful termination of the contract. It is now heavily contesting that unlawful termination. For that reason, it has advised its personnel to continue providing security services. To the extent that the relationship between the parties is a contractual one, the solution to the dispute can only be found in the law of contract. The celebrated words of JESSEL M. R in Printing Registering Co v Sampson 19 Eq 462 at 465 are apposite: “If there is one thing which more than any other public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider that you are not lightly to interfere with this freedom of contract.” HH 399-15 HC 3411/15 The parties freely and voluntarily entered into the security services contract. In the exercise of its freedom of contracting the applicant elected that it was no longer interested in the services of the respondent and terminated them. The respondent cannot in law insist that it will continue to provide that service until kingdom come even against the will of the applicant which has shown beyond doubt its intent to move on by bringing on board another security company. Even if the termination is found to have been unlawful, the respondent has well defined remedies in contract in particular it can sue for damages, it however cannot insist on continuing to provide service which is no longer required. The nature of the contract is such that this cannot be allowed to happen. As it is, a chaotic situation obtains at the applicants premises and it is an unhealthy one indeed. Clearly the security situation has been compromised. Mr Mpofu for the applicant is right that the position of the respondent is bizzare indeed. I am therefore satisfied that the applicant has made out a case for the relief sought. Accordingly the provisional order is hereby granted in terms of the draft order. Dube, Manika & Hwacha, applicant’s legal practitioners Muronda Malinga Legal Practice, 1st respondent’s legal practitioners