Under the common law, an essential ingredient of a contractual lease is that the amount of the rent payable by the lessee must be fixed or that some definite mode of fixing the rent must be agreed upon. In other words, the rental must be in an ascertained or ascertainable amount. See Totoyi v Ncuka 1909 EDC 115. See also Film and Video Trust v Mahovo Enterprises (Pvt) Ltd 1993 (2) ZLR 191 (H) …, citing Brown v Hicks (1902) 19 SC 314…,.:

“Until the rent, or some definite mode of fixing the rent, is agreed upon, there is no contract of letting and hiring of the house. The letting of services stands upon the same footing.”

The plaintiff has issued summons against the defendant for the return of its trailer registration number 467-556M which had been leased to the defendant and which lease agreement has now been cancelled.

Despite demand, the defendant has failed and/or refused to return the said trailer. Alternatively, the plaintiff prays that the value of the trailer should be paid to it.

The basis of the claim is that the trailer belongs to the plaintiff. Upon the expiry of the lease the trailer should have been returned to the owner.

The issues for determination were agreed upon by the parties at the pre-trial conference. These are:

(a) Whether the trailer in question was stolen at all or alternatively lost as a result of negligence or any other actionable wrong on the part of the defendant.

(b) Whether the fact that the trailer was supposed to be insured absolves the defendant of his duty of care and/or risk in respect of the said trailer.

(c) Quantum of damages which may be awarded to the plaintiff.

The onus of proof for issues (a) and (b) is on the defendant and (c) on the plaintiff.

The plaintiff called Martin Jonathan Rowland as a witness. He is the Managing Director, Commercial and Industrial Holdings of the plaintiff company. He said at the time of the transaction, Mr Mhaka dealt with the late Mr Schoffield. At some stage, the plaintiff became aware of the fact that vehicles leased out to the defendant were not being properly maintained and they were damaged in some instances. When they realized that the agreement was not working, they called for the return of the final vehicle i.e. the trailer subject matter of these proceedings.

The defendant informed them that the vehicle had been stolen. The plaintiff was only informed, in 2003, that the trailer was stolen. He said the duty to insure the trailer was on the plaintiff company. Although the risk of loss was on the plaintiff company, he said the defendant had a duty to timeously inform the plaintiff of the theft, which the defendant did not do in this case. This deprived the plaintiff company the right to claim from its insurers and this seems to be the argument.

This witness said if the report of theft had been made to the late Mr Schoffield, the latter would have reported at their company monthly meetings where legal issues are discussed. He said for an insurance claim to be made, the defendant was supposed to give full details of the theft and do so on time. He said the defendant did not provide the date of the theft. They were not provided with police initial report details. They were not sure whether the trailer was stolen or not. They demanded the return of the trailer, failing which replacement value of the trailer.

Under cross-examination, he conceded that there is no clause in the agreement which imposes a duty on the defendant to report theft to the plaintiff, let alone doing so timeously. He stated that the plaintiff did not, on its own, report the theft of the trailer to the police because they were not sure there was a theft; it was up to the defendant to report as the custodian of the trailer. When asked whether the plaintiff had bought a replacement trailer he said it was difficult to say because the plaintiff buys trailers regularly but from 2002 they bought trailers in 2004.

The plaintiff also called Dabpson Kanyoka, the Bulawayo Branch Manager, Zimnat Lion Insurance Company. He placed the value of the trailer at $20 million at the time he testified. Under cross-examination he conceded that he is not an expert in such assessments and that he relied on assessments done by engineers.

His testimony does not take the matter any further.

The plaintiff then called Vongai Gapare, a former senior underwriter at Zimnat. She authored the letter, exhibit 3, which gave the current market value of the trailer as Z$2.2 million in September 2006. She conceded that she did not consult the experts as the matter was urgent. She said she just used “information at hand” to arrive at that figure. She, however, later consulted an engineer who placed the value at $9 million.

Her testimony does not take the matter any further. Her evaluation is “off-the-cuff” and she is not, in any event, an expert in the field.

The plaintiff then called Bhekimpilo Moyo. He said he does vehicle valuation in assessments. He is a qualified vehicle body repairer and has been in the industry for over ten (10) years. He did a desk evaluation for the trailer in question at the behest of Zimnat Lion. He arrived at the conclusion that a similar trailer would be valued at Z$9,5 million.

The Managing Director of the defendant company, Amos Mhaka, testified. He said at the time the agreement was entered into it was not explained to him that he had a duty to notify the plaintiff on time of any theft or loss of the trailer. He said this was not put in black and white either. He said the trailer was stolen and he reported the theft to the police. He took the police reference number to the late Mr Schoffield. He said the trailer was stolen between August and October 2004. He said the trailer was stolen when it was en route from Harare to Bulawayo. The trailer developed mechanical problems around Battlefields area. His employee, the late Jonathan Mhlanga, was driving at the time. When Jonathan became aware of the theft of the trailer, he reported the matter to Battlefields Police before he contacted him.

The late Constable Mashati was dealing with the matter and he required that the registration book and the insurance policy be submitted. This information was recorded by then Constable Mushati on a piece of paper. When Jonathan Mhlanga gave him this piece of paper he (i.e. the witness) telephoned Mr Schoffield and eventually went to see him at his Harare office. Mr Schoffield told him that he had some urgent business to attend to in Mutare and told him to leave the police reference note in his office and he indicated that he would attend to the matter. When, in 2003, the defendant started receiving letters from the plaintiff demanding the return of the trailer, he assigned a driver to get the police reference details at Battlefields Police Station. The driver was informed that the police detail dealing with the matter had passed on. He said this demand for the return of the trailer was after he had given the police reference to the late Mr Schoffield. He did not keep a copy thereof.

He said that at the time of the issuance of summons in this matter the defendant was no longer paying rental for the trailer. The defendant last paid rentals in 2002.

Under cross-examination it became apparent that he was not being truthful on the fate of the piece of paper allegedly obtained from the late Constable Mushati. Whilst in his testimony, as alluded to above, he said he gave it to the late Mr Schoffield, in the pleadings it is the defendant's case that it was lost or misplaced. In fact, the pleadings are that the original was given to Mr Schoffield and he remained with a copy yet he now disputes ever remaining with a copy.

This discrepancy is on a material issue of whether the plaintiff was ever notified of the alleged theft prior their demand for the return of the trailer.

Mr Mhaka is the sole witness for the defendant.

As alluded to above, he confirmed the existence of the lease agreement and that he personally dealt with the plaintiff concerning this lease agreement. He, however, does not have first-hand knowledge of the theft of the trailer. He never personally made efforts to verify whether or not the driver had indeed made a report to the police. All his evidence around that issue is hearsay.

The driver of the truck on that day in question is Jonathan Mhlanga who is late. The other person who could have enlightened the court about the police report is a constable who is also late.

He said enquiries made at the Battlefields Police Station by the defendant have not yielded anything. There is no record at the police station that any report was ever made.

Against this background, the plaintiff denies that the trailer was stolen and demands that the defendant should prove that fact by at least producing a police report.

Mr Mhaka does not have anything in his files on the police report i.e. references. Mr Mhaka said he notified director, Mr Schoffield, who, like other key witnesses, is late. The late Mr Schoffield did not usually deal with such matters and Mr Mhaka could not give a satisfactory explanation why he did not deal with the other officials with whom he had dealt with on a day-to-day basis before. He simply gave the reasons that the relations between them had soured hence the need to deal with defendant's director, Mr Schoffield.

It seems highly unlikely that people who only know all the evidence of whether or not the trailer was stolen and the police report that was made, and Mr Schoffield, have taken those secrets to their graves. It is also highly unlikely that upon receiving information about the theft of the 20 tonne trailer, which was so central or important to the business and the particular contract, Mr Mhaka would not himself have personally made a follow-up. This is moreso in view of the fact that the relations between the plaintiff and the defendant have soured.

Mr Mhaka confirmed, under cross-examination, that at that point he did not trust the plaintiff as he felt that they had treated the defendant badly before. He felt that the plaintiff had swindled the defendant on the payment for the trailer. All this is more reason why he should have been more meticulous in keeping records and in dealing with the plaintiff.

In short, the defendant has failed to discharge the onus resting on it to prove the theft.

It is common cause that the plaintiff would be responsible for insuring the trailer and not the contents of the trailer. The trailer was insured according to the evidence of Mr Rowland. A claim could not be made because a report to the plaintiff was not made timeously. To date, there is no evidence of any police report - which is the main requirement of the insurers. In any event, this is neither here nor there and does not have a bearing on this matter;

(i) Firstly, the defendant has not proved, on a balance of probabilities, that the trailer was stolen. As alluded to above, such onus was on the defendant.

(ii) Secondly, even if it was, the plaintiff was not timeously informed of the alleged theft.

(iii) Thirdly, even if the plaintiff had been informed, this would not absolve the liability of the defendant.

In Principles of Delict by JONATHAN BURCHELL (1993), Juta & Co…, the learned author rightly stated:

“The general principle underlying the award of damages under the aquilian action (and the law of delict as a whole) is one of compensation to the plaintiff. But, frequently, a person injured may have his losses partially or wholly met from outside or collateral sources other than the said damages. Examples of such collateral benefits are: gifts or donations, pension, sick pay benefits, insurance (both indemnity and none indemnity) and medical and…,.

The general rule is that the receipt of money by the plaintiff from an insurance company is not deductable from his damages. The plaintiff has to exercise foresight in taking out insurance cover, for which he has paid premiums on a regular basis and shall not be deprived of the benefit of the cover. Nor should the defendant be spared for liability for his negligence simply because he has, by chance injured a foresighted individual whose losses are covered by insurance.”

Within the context of indemnity insurance, with the rules of subrogation applying, the insurer, once it has paid out the insurance cover to the plaintiff, is placed in the shoes of the plaintiff and can pursue the claim against the defendant to recoup its own loss. In so doing, the insurer can claim in the name of the plaintiff.

It is clear, therefore, that the negligence of the defendant is not absolved by the new effect insurance – Mackenzie v SA Taxicab 1910 WLD 323 and Dippenaar v Shield Insurance Co. 1979 (2) SA 904 (A).

Benefits in terms of indemnity insurance, which a plaintiff has received or will probably receive on account of his loss, are seen as res inter alios acta i.e they are not taken into account in reducing his damages – Ackerman v Loubser 1918 OPD 31; Teper v McGees Motors 1956 (1) SA 738 (C); Van Dyk v Cordier 1965 (3) SA 723 (O); Law of Delict by J NEETHLING, J M POTGIETER and P J VISSER (2^nd Ed).., and A Guide to the Zimbabwean Law of Delict by G FELTOE (3^rd Ed)..,.

All in all, the defendant remains in possession of the plaintiff's trailer and has not returned it.

In the absence of any other probable explanation, which is supported by direct evidence, an award must be made in favour of the plaintiff.

On the question of the quantum of damages the onus is on the plaintiff.

Different valuations of the trailer were given during the pleadings and the trial on account of the rapid escalating rate and re-denomination of the currency. The Zimbabwean dollar is no longer in use. The court has taken judicial notice of this notorious fact – Ndawana v Nasho & Ors 2000 (1) ZLR 23 (H) and Reza v Nyangani 2001 (1) ZLR 202 (S). This court has to strive to arrive at an equitable remedy based on recent valuation. The difficulty is that the recent value given during the trial was denominated in Zimbabwean dollars which is no longer in use. The court has to find a way of obviating the problem created by this intervening event.

Accordingly, it is ordered that:

(1) The defendant be and is hereby ordered to return the plaintiff's trailer registration number 467-556M within seven days of service of this order.

(2) Failing compliance with paragraph (1) above, the defendant is hereby ordered to pay the plaintiff the current market value of a similar trailer as assessed by the average of evaluations of three independent qualified motor vehicle evaluators, with interest on the figure tempore morae from 16 March 2005.

(3) The defendant will bear the costs of this suit on the ordinary scale.

The plaintiff company issued summons against the defendant, a building contractor, on 16 February 2011, seeking payment of US$1,340= per month  hire costs from 1 February 2009 to the date, the defendant returns scaffolding equipment and the return, or alternatively, the value of that equipment in the sum of US$30,777=55.

The defendant contested the action.

The plaintiff called the evidence of two witnesses. These were its Credit Controller, Geraldine Mountford, and Clerk, Munorwei Sibanda. In addition, two documentary exhibits, the fifty-paged bundle of documents, exhibit 1, and the Form Scaff Current Item Based Price List Catalogue for February 2009, exhibit two, were produced. The defendant testified and called one other witness. In addition, he produced one documentary exhibit, exhibit 3.

Most of the facts in this matter were common cause. On 22 October 2007 the defendant completed a Form Scaff processing form…, that set out his name, physical home address and postal address and the site address where the scaffolding material was to be used, his identification number, telephone and cellular numbers. He gave the site address as Stand 2751 Hay Hill, Glen Lorne, Harare. He paid a deposit of ZW$49 million. On dates ranging from 22 October to 2 November 2007 the defendant hired scaffolding equipment from the plaintiff listed in paragraph 3 of the declaration. The hire advice notes listing this property form pages 26 to 31 of exhibit 1. He was aware of the fourteen conditions of hire at the back of each hire advice note that are reproduced on page 25 of exhibit 1. He agreed to pay the hire rates for the equipment during the period the equipment was out of the plaintiff's premises. He also agreed to pay the current full catalogue price on the property not returned or lost. On 27 February 2008 he returned some of the property, as listed in the hire return note on page 32 of exhibit 1 but did not return the property listed in paragraph 6 of the plaintiff's declaration.

All the above facts were agreed.

Geraldine Mountford prepared the reconciliation of outstanding equipment…, as at 27 February 2008. The defendant did not challenge its accuracy. Munorwei Sibanda and Godfrey Ngomani collected the property listed in the hire return notes…., on 14, 21 and 22 July 2008 from Nicetime Supermarket Glenary, Snake Park, Harare. Pages 49 and 50 of exhibit 1 extrapolate the equipment that was collected from Nicetime Supermarket. The scaffolding equipment in question had been hired by Fourth Fort whose site address had been 837 Jacana Drive, Borrowdale. The hirer, one Tome, signed the hirer return notes for the equipment collected from Nicetime Supermarket. The equipment tallied with that which had been hired out by Fourth Fort. Apparently, Tome had been duped by a yard checker employed by the plaintiff, one Norman Kapofu, who collected the equipment from his site to Nicetime Supermarket. Munorwei Sibanda left the property at Nicetime Supermarket that Norman Kapofu alleged belonged to other hirers.

In her testimony, Geraldine Mountford used the plaintiff's catalogue price dated 4 January 2010…, of the equipment on hire to calculate the weekly hire charges of each piece of equipment that was not returned. She calculated the charges at US$344=79. She multiplied the figure by four to calculate the monthly hire charges of US$1,340=00. Her arithmetic was not challenged. She stated that she dispatched invoices to the defendant at his postal address for payment of hire charges for the outstanding equipment such as the one dated 1 June 2010…,..

In his testimony, the defendant admitted to receiving such invoices until May 2009.  He produced exhibit 3, a similar invoice of 13 June 2008.

In his defence the defendant stated that he diverted the property he remained with to Nicetime Supermarket where he was constructing the deck of the supermarket in partnership with Norman Kapofu. The partnership commenced in May 2008. He advised some coloured man at the plaintiff of his intention to relocate some of the equipment to some place he did not identify. He averred that it was collected by the plaintiff in December 2008 in the presence of Norman Kapofu. At the beginning of 2009, he advised the plaintiff that it had collected property that he had hired. He continued to receive invoices in US$ until May 2009. He did not pay up because the equipment had been collected. He advised the plaintiff to stop sending him invoices as it had collected the equipment he had remained with.

He did not know how the plaintiff became aware of the presence of the equipment at Nicetime Supermarket. He did not have a hire return note from the plaintiff to show the property in dispute was surrendered or the list signed by the collecting driver.

It became clear that the property collected in July 2008 was not the property that the defendant had in his custody. He maintained the equipment in dispute was collected in December 2008. He denied liability on the basis that the property had all been collected. He did not understand how the catalogue price was determined and whether it was in accordance with the rates stipulated by the construction industry…..,.

It is on the basis of the totality of the evidence led that I have to determine the three issues that were referred to trial on 20 October 2011.

1. Whether the plaintiff collected the alleged outstanding scaffolding equipment from the defendant or any other person in 2008

The onus was on the defendant to prove, on a balance of probabilities, that the plaintiff collected the equipment in issue. In Manley Van Niekerk v Assegai Safaris & Film Productions (Pty) Ltd 1977 (2) SA 416 (A)…, VILJOEN AJA stated that -

“In a case such as the present where the claim is brought ex contractu for the return of the leased article or its value, all that the lessor need to allege is that it hired the article out, that the lessee was obliged to return it and that he failed to return the article or its value. The lessee has to allege and prove that his failure to return it is due to some cause for which he is not to blame.”

See also Nel v Dobie 1966 (3) SA 352(N)…,.

It was common cause that the equipment in issue was not returned to the plaintiff on 27 February 2008. The defendant averred that the equipment was forcibly collected in December 2008 by the plaintiff's agents who included Munorwei Sibanda. The defendant was not personally present when the collection took place. He relied on the testimony of Norman Kapofu. Norman Kapofu stated that Munorwei Sibanda and Chiwanza left a signed collection list of the items that they removed. He failed to produce the list in question notwithstanding that he gave it, on that very day, to his employer, Crispen Thomu, who had also contracted the defendant to construct Nicetime Complex. The defendant has had four years to collect the list from Crispen Thomu since it was given to him and two years to do so since summons was served on him. Norman Kapofu did not follow Munorwei Sibanda to the plaintiff's premises on the day of the alleged collection, or soon thereafter, to sign for and collect the hire return note for the equipment. The defendant did not do so on his return from Bindura in December 2008 or even in January 2009. The defendant and Norman Kapofu, did not, as expected seek the hire return note. These shortcomings confirm the plaintiff's version that the equipment in issue was not collected in December 2008. The mistake in Munorwei Sibanda's summary of evidence that he collected some items hired out by Fourth Fort in December 2008 was corrected by the hire return notes compiled by the plaintiff and signed for on behalf of Fourth Fort by Mr Tome. The evidence of Munorwei Sibanda that he collected the equipment hired out by Fourth Fort was unwittingly confirmed by Norman Kapofu. He agreed with Munorwei Sibanda that he was in the company of Godfrey Ngomani. That he did so on three different days to obviate the collapse of the deck. The documentation confirmed the accuracy of Munorwei Sibanda's testimony.

I am satisfied that the defendant has failed to discharge the onus on him to show that the equipment in issue was collected by the plaintiff. I find that the scaffolding equipment in question was neither collected by the plaintiff nor surrendered by the defendant.

The plaintiff's claim against the defendant is for the following relief:-

''(i) Payment of the sum of US10,649= being the price agreed upon by the parties for the hire of the plaintiff's 40 tonne mobile crane by the defendant to offload 4 containers including the cost of the crane moving to and from Bulawayo to defendant's place of business at Hwange, which defendant confirmed by way of a purchase order number 1336 dated 24^th January 2012, and which crane was supplied to defendant in terms of the contract, and despite demand refuses to pay the aforesaid sum of US$10,649=.

(ii) Interest a temporae morae at the prescribed rate calculated from 7^th February 2012, when defendant was placed in mora, to date of final payment.

(iii) Costs of suit.''

The defendant opposed the plaintiff's claims and filed a plea in the following terms:-

''Defendant admits entering into a contract with the plaintiff and further pleads as follows:-

2.1 That it was a term of the contract that Plaintiff's crane would be available to offload Defendant's cargo at the Defendant's workshop in Hwange by 2:00pm on Wednesday the 25^th January 2012. 

2.2 That time was of the essence as the transporter of Defendant's cargo was going to levy charges for delays occasioned by the defendant in unloading the cargo or if the delay was unreasonable, to return with the cargo to the source.

2.3 That, in breach of the term aforesaid, plaintiff's crane only arrived at the defendant's mine on Thursday 26^th January 2012.

2.4 That prior to arrival of plaintiff's crane, in order to mitigate its damages, Defendant accepted the breach and concluded a contract with Hwange Colliery Company around 4:00 pm on Wednesday 25^th January 2012 for the hiring of the alternative crane.

3. Defendant admits refusing to comply with the plaintiff's demand as the payment demanded was not due in consequence of plaintiff's breach as aforesaid.”

The issues for determination by the court are relatively narrow and are as set out below:

ISSUES

1. Was it an essential term of the contract that the plaintiff's crane would be available to offload the defendant's cargo at the defendant's workshop in Hwange by 2pm, Wednesday, 25^th January 2012?

2. Was the arrival of the plaintiff's crane at the defendant's mine, on Thursday, 26^th January 2012, a breach of the contract?

3. Did the defendant enter into a contract with Hwange Colliery Company on Wednesday 25^th January 2012, for hire of another crane, in order to mitigate its damages?

4. Is the plaintiff entitled to claim $10,649= from the defendant?

Most of the facts in this matter are common cause, or at least beyond dispute.

There is agreement by both parties that on the 24^th January 2012 the defendant, based in Hwange, through the agency of a third party by the name Emmanuel, contracted with the plaintiff (based in Bulawayo) for the hire of a 40 tonne crane to offload certain containers in Hwange. The parties negotiated the contract price for the work and eventually settled for US$10,649=, representing the cost of mobilising the crane from Bulawayo to Hwange and a daily rate of US$2,994=. The crane did arrive at Hwange on the morning of the 26^th January 2012 but did not do any work as the defendants had already secured and hired an alternative crane from Hwange Colliery Company at a much lower rate of $1,800=. The plaintiff insists that it made the crane available and incurred expenses in mobilising the crane and driving the said crane all the way from Bulawayo to Hwange and back.

THE PLAINTIFF'S CASE

Donovan Jones is the plaintiff's Managing Director. He testified on behalf of the plaintiff.

He explained that on the morning of the 24^th January 2012 one Emmanuel and Sam Omar visited his workplace at Bulawayo. They indicated that we are acting for and on behalf of Victor Mutokonyi of the defendant company. They intended to hire a crane from the plaintiff. They had a low-bed trailer ready to transport the crane to Hwange that same day. Donovan Jones advised Emmanuel and his colleague that it was necessary to prepare a formal contract with the defendant setting out the terms and conditions of the crane hire. Donovan Jones asked to speak directly to Victor Mutokonyi and the two spoke on the phone. Donovan Jones informed Victor Mutokonyi that they needed a 40 tonne crane for the kind of containers they wanted to offload. Donovan Jones could not finalise the transaction with Victor Mutokonyi who referred him to one Hennie Diedricks. Eventually, Donovan Jones and Hennie Diedricks agreed that the crane would be driven, at the very latest, the following morning around 5am and would possibly arrive at Hwange sometime in the afternoon. It is not disputed that Hennie Diedricks wanted the crane urgently and even tried to persuade Donovan Jones to cause the crane to be driven overnight to Hwange. Donovan Jones flatly refused insisting that the crane could not be driven during the night. From the evidence of Donovan Jones, it emerged that there were various logistical problems connected with the movement of the crane to Hwange. The following is a summary of the problems highlighted by Donovan Jones:-

(a) The plaintiff was concerned that they had never driven that type of crane over long distances (It had never been driven more that 40km outside Bulawayo).

(b) The plaintiff had no previous experience of driving the crane over long distances.

(c) The plaintiff did not know how long it would take to drive the crane to Hwange.

(d) The crane could only be driven during day time.

(e) They could not be sure what time the crane would arrive at Hwange.

Donovan Jones and Hennie Diedricks agreed that the crane would leave Bulawayo the following morning and it was expected in Hwange on the afternoon of the 25^th January 2012. The defendant forwarded a Purchaser Order to the plaintiff that same day via e-mail, the 24^th January 2012, and payment was to be made to the plaintiff as soon as the crane had arrived at Hwange and before the work could be undertaken. Donovan Jones said that he was out of his office the rest of the day on the 25^th January 2012 and that he did not have his mobile phone whose number he had used to communicate with Victor Mutokonyi and Hennie Diedricks.

As things turned out, the crane driver could not make it to Hwange that same day the 25^th January. He was forced to put up at Dete because it had become dark and he needed to top-up his engine oil. Donovan Jones said that he communicated with Victor Mutokonyi on the night of the 25^th January. Victor Mutokonyi expressed disappointment and told Donovan Jones that they had let him down. The mobile communication between Donovan Jones and Victor Mutokonyi was interrupted by a failure in the network signal. Donovan Jones testified that on the morning of the 26^th January 2012, around 10 am, he received a call from Victor Mutokonyi who told him that the contract had been cancelled because the defendant had secured a crane from elsewhere. Donovan Jones advised Victor Mutokonyi that the defendant still had to pay for the crane. Victor Mutokonyi referred Donovan Jones to Hennie Diedricks who stated that he was not going to pay for the crane but, instead, suggested that Donovan Jones could leave the crane in Hwange for a week and attend to other work to recover the expenses. This was not acceptable to the plaintiff and the crane was subsequently driven back to Bulawayo. 

At that stage, it was clear that the deal had turned sour.

Donovan Jones was extensively cross-examined but he maintained his version of events. He specifically refused any suggestion that he gave an actual arrival time for the crane. He stated that there was no way he could give an undertaking to have the crane by a specific time because he told Hennie Diedricks that he had no previous experience of driving the crane over a long distance….,.

The last witness for the plaintiff was the crane driver Ngwabi Gumbo.

He indicated that he left Bulawayo at around 5am on his way to Hwange. He had to stop every 80km to 100km to rest the crane's tyres. His average speed was 30 - 50 km/per hour on open road but went as slow as 12km/per hour on inclines. He arrived at Dete on the evening of the 25^th January 2012 and since he could not drive at night he slept there. On the morning of the 26^th January 2012, whilst he was looking for engine oil, he received a call from Victor Mutokonyi who asked him where he was. He told him he was at Dete and as soon as he procured oil he would be on his way. Victor Mutokonyi did not advise him to return to Bulawayo, neither did he advise him that the crane was no longer required, so he proceeded to Hwange. Upon arrival at Hwange, the crane driver was told that he had been late and another crane had been hired. He stated that the alternative crane had not started off-loading when he arrived at Hwange because Victor Mutokonyi came and asked him for slings since the crane they had hired did not have slings. The witness said he refused to give them the slings for fear that they could break.

THE DEFENDANT'S CASE

The defendant led viva voce evidence from Victor Mutokonyi. He is employed by the defendant as the Transport and Logistics Manager. He took up employment with the defendant company in October 2010. He confirmed that he sent Emmanuel, whom he referred to as his transport contractor, to look for a crane. The defendant required the crane for the purposes of off-loading 4 X 40 feet containers from certain haulage trucks. The owners of the haulage trucks were threatening to return with the said containers if they were not off-loaded by the afternoon of the 25^th January 2012. Victor Mutokonyi testified that he commenced negotiations with Donovan Jones on the phone but the final contractual terms and conditions were concluded by Donovan Jones and Hennie Diedricks. His understanding was that the plaintiff had agreed to have the crane available at Hwange by 3pm on the 25^th January 2012. He says the telephone conversation between Donovan Jones and Hennie Diedricks was conducted in his presence and hearing although he could only confirm one side of the story as related by Hennie Diedricks. Victor Mutokonyi testified that during the morning of the 25^th January 2012 he had phoned Donovan Jones on his mobile phone several times and Donovan Jones was not picking up the phone. He says that what he quickly concluded was that he was dealing with fraudsters. Victor Mutokonyi confirms that he had a telephone discussion with Davina Porter on the morning of the 25^th January 2012 but says Davina Porter did not confirm that the crane had left Bulawayo.

Victor Mutokonyi's testimony on this aspect contradicted the contents of the defendant's Synopsy of Evidence which suggested that Victor Mutokonyi had failed to locate Davina Porter on her mobile phone. It is therefore clear that Victor Mutokonyi could have told Davina Porter that the contract was being terminated, if that was the defendant's intention, because he was in communication with Davina Porter.

Victor Mutokonyi confirmed that he spoke to the crane driver on the morning of the 26^th January 2012. One wonders why Victor Mutokonyi did not advise the crane driver not to bother looking for engine oil and to simply return to Bulawayo. The suggestion by Victor Mutokonyi that he informed the crane driver to return to Bulawayo was evidently an afterthought. This view is strengthened by the fact that upon arrival at Hwange, Victor Mutokonyi told the crane driver to park the crane whilst he spoke to the plaintiff's employers.  If Victor Mutokonyi had told him not to proceed with his journey he would have confronted him at once and asked him why he had come to Hwange.

The defendant's version of events does not read well and there are material inconsistencies. Victor Mutokonyi could not be certain of the final terms as agreed between Hennie Diedricks and Donovan Jones. Donovan Jones must be believed by the court when he stated that he could not give an exact time of arrival because the crane had never been driven for long distances. This information was communicated to the defendant.