Judgment No. SC 15/18 Civil Appeal No. SC 266/15 The respondent called one Pondai Chitauro to testify on his behalf. He was formerly employed by the appellant as a debtor’s clerk. He had dealt with the respondent during the relevant period and he was the clerk seized with the Farmcrop debt. It was he who received the letter from the respondent and Nyakudya proposing the transfer of the suretyship from the respondent to Nyakudya. He had given the letter in question to the appellant’s treasury accountant who instructed him to permit Nyakudya to execute a deed of suretyship. However under cross-examination he accepted that there never was a formal letter from the appellant cancelling the deed of suretyship executed by the respondent. The parties were bound by the clause which stipulated that the deed of suretyship would be cancelled in writing by the appellant and it was admitted by all witnesses who testified on behalf of the respondent that there was no document which explicitly stated that the appellant had cancelled the deed of suretyship. That alone is evidence that the respondent still remained liable in terms of the deed of suretyship. As correctly stated by counsel for the appellant, the letter it wrote to its legal practitioners was colourless and did not reflect that the appellant cancelled the agreement of sale. It merely stated that Farmcrop had written a letter to transfer suretyship from the respondent to Lazarus Nyakudya. It was erroneous for the court a quo to attach meaning to the letter which is not clear from its wording. The remarks of GUBBAY JA (as he then was) in Mxumalo & Ors v Guni 1987 (2) ZLR 1 (S) at 8 come to mind. He stated:“The language used is plain and unambiguous and the intention of the Law Society is to be gathered there from. It is not for a court to surmise that the Law Society may have had an intention other than that which clearly emerges from the language used.” 7