MAKONESE
J: The plaintiff's claim against the defendant is for the following
relief:-
''(i)
Payment of the sum of US 10 649 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 24th 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 7th
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 25th 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 26th 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 25th 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 Plaintiff's crane would be
available to offload Defendant's cargo at Defendant's workshop in Hwange by
2pm, Wednesday, 25th January 2012?
2.
Was the arrival of Plaintiff's crane at Defendant's mine on Thursday, 26th
January 2012 a breach of the contract?
3.
Did Defendant enter into a contract with Hwange Colliery Company on Wednesday
25th January 2012, for hire of another crane, in order to mitigate
its damages?
4.
Is Plaintiff entitled to claim $10 649-00 from Defendant?
Most of the facts in this matter are common cause, or at
least beyond dispute. There is agreement by both parties that on the 24th
January 2012 defendant based in Hwange through the agency of a third party by
the name Emmanuel contracted with the plaintiff (based in Bulawayo) for the
hire of a 40 tonne crane to offload certain containers in Hwange. The
parties negotiated the contract price for the work and eventually settled for
US$ 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 26th 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 $1800. 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 24th
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. 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. Jones asked
to speak directly to Victor Mutokonyi and the two spoke on the
phone. Jones informed Mutokonyi that they needed a 40 tonne
crane for the kind of containers they wanted to offload. Jones could not
finalise the transaction with Mutokonyi who referred him to one Hennie
Diedricks Eventually Jones and 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 Diedricks wanted the crane urgently and even tried to persuade Jones
to cause the crane to be driven overnight to Hwange. Jones
flatly refused insisting that the crane could not be driven during the
night. From the evidence of 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 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 25th
January 2012. The
defendant forwarded a Purchaser Order to the plaintiff that same day via e-mail
the 24th 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. Jones said thathe was out of his office the rest of the day
on the 25th January 2012 and that he did not havehis mobile
phone whose number he had used to communicate with Mutokonyi and Diedricks.
As things turned out the crane
driver could not make it to Hwange that same day the 25th January.
He was forced to put up at Dete because it had become dark and he needed to top
uphis engine oil. Jones said that he communicated with Mutokonyi
on the night of the 25th January. Mutokonyi
expressed disappointment and told Jones that they had let him down.
The mobile communication between
Jones and Mutokonyi was interrupted by a failure in thenetwork signal.
Jones testified that on the morning of the 26th January 2012 around
10 am hereceived a call from Mutokonyi who told him that the contract
had been cancelled because thedefendant had secured a crane from elsewhere.
Jones advised Mutokonyi that the defendantstill had to pay
for the crane. Mutokonyi referred Jones to Hennie who stated
that he was notgoing to pay for the crane but instead suggested that Jones
could leave the crane in Hwange fora week and attend to other work to recover
the expenses. This was not acceptable to theplaintiff and the crane was
subsequently driven back to Bulawayo. At that stage it was clear that the
deal had turned sour.
Joneswas 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 that he had no previous experience of
driving the crane over a long distance.
I find the version of events as
narrated by Jones to be fairly clear and straight forward.
He struck as a honest and credible witness. His
account is believable. The court accepts his testimony. There are
no material contradictions in his evidence.
The second witness for the plaintiff was DAVINA PORTER. She is
the personal assistant and secretary to Donovan Jones. Her
evidence corroborated the testimony of Jones in all material respects.
She confirmed the arrival of Emmanuel and Sam Omar at the
plaintiff's premises on the 24th January 2012. She further
confirmed that she sent an e-mail to Mutokonyi on the 25th January
2012 demanding that payment for the crane be effected before commencement of
the work. She went on to testify that on the 25th January
2012, Mutokonyi called her on her mobile number seeking to establish
the following:
(a) whether the crane had left for
Hwange that morning.
(b) where the crane was
(c) the crane's estimated arrival
time at Hwange.
Ms Porter says she advised Mutokonyi that the crane had left
Bulawayo but she was not sure of it's precise location. She says she had
phoned the crane driver who said he was on his way but the journey was taking
longer than expected. Under cross examination Ms Porter maintained that
she advised Mutokonyi that the crane was on its way to Hwange and that the
defendant never indicated any intention to cancel the contract.
Ms Porter's evidence was consistent, credible and reliable in all material
respects. Her evidence reads well and is not tainted with any
exaggeration.
The last witness for the plaintiff was the crane driver NGWABI GUMBO.
He indicated that he left Bulawayo at around 5 am on his way to Hwange.
He had to stop every 80 km to 100 km to rest the crane's tyres. His
average speed was 30 -50 km per hour on open road but went as slow as 12
km per hour on inclines. He arrived at Dete on the evening of the
25th January 2012 and since he could not drive at night he slept
there. On the morning of the 26th 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 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 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 crane driver was clearly an experienced man
who had started operating cranes in 1991. His evidence was easy to follow
and he simply narrated what transpired. I have no hesitation in accepting
his evidence as truthful.
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 25th
January 2012. Victor testified that he commenced negotiations
with Jones on the phone but the final contractual terms and conditions
were concluded by Jones and Hennie. His understanding
was that the plaintiff had agreed to have the crane available at Hwange by 3pm
on the 25th January 2012. He says the telephone conversation
between Jones and Hennie was conducted in his presence and
hearing although he could only confirm one side of the story as related by Hennie.
Victor testified that during the morning of the 25th
January 2012 he had phoned Jones on his mobile phone several times and
Jones was not picking up the phone. He says that what he quickly
concluded was that he was dealing with fraudsters. Victor confirms
that he had a telephone discussion with Ms Porter on the morning of the 25th
January 2012 but says Ms Porter did not confirm that the crane had left
Bulawayo. Victor's testimony on this aspect contradicted the
contents of the Defendant's Synopsy of Evidence which suggested that Victor
had failed to locate his Ms Porter on her mobile phone. It is therefore
clear that Victor could have told Ms Porter that the contract was being
terminated if that was defendant's intention because he was in communication
with Ms Porter. Victor confirmed that he spoke to the crane driver on the
morning of the 26th January 2012. One wonders why Victor
did not advise the crane driver not to bother looking for engine oil and to
simply return to Bulawayo. The suggestion by Victor 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 told the
crane driver to park the crane whilst he spoke to plaintiff's
employers. If Victor 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 could not be certain of the final terms as agreed
between Hennie and Jones. 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.
The evidence of Victor is not supported by the facts. If the
plaintiff could not be certain how long the crane would take to arrive at
Hwange there is no conceivable reason why the plaintiff would have undertaken
to be at Hwange by 3 pm on the 25th January 2012. By his own
admission, Victor said that when he resolved to enter into a contract for an
alternative crane with Hwange Colliery Company on the 25th January
2012 he had not terminated his contract with the plaintiff. Victor failed
to explain why he did not use the other available means of communication
namely, the plaintiff's landline or e-mail.
I found the evidence of Victor to be unreliable. He did not
impress as an honest witness. He was not comfortable on the witness
stand. He was very evasive and the court was left without any doubt that
the defendant did not negotiate the contact in good faith. When asked to
explain why the defendant had chosen to enter into a contract for an
alternative crane before terminating the contract with the plaintiff, Victor
stated that he found this cheaper as the Colliery crane would cost US$1
800. The inescapable conclusion is that the defendant deliberately
refrained from cancelling the contract with the plaintiff to keep both canes in
their sights and control. They chose to take the crane that arrived first
and that became cheaper for them in the end.
ANALYSIS OF THE EVIDENCE
1.
Whether it was an essential term of the contract that plaintiff's crane
would be available to offload defendant's cargo at defendant's workshop in
Hwange by 2 pm, Wednesday 25th January 2012.
The onus lay on the defendant to
prove this issue. The defendant's witness Victor
revealed to the court that he had told Jones that ''they
wanted the crane as soon as possible''. These were Victor's
exact words and it seems from all the surrounding circumstances related to the
transaction that Jones could not have and did not give the defendant a specific
arrival time for the crane.
I am satisfied that it was not established that the crane would arrive at 2pm
on the 25th January 2012. In any event Jones told
both Victor and Hennie that they had never driven the crane
for long distances and did not know how long the journey would take. If
time was so critical to the defendant it should have opted for an option that
had definite certainty with regards time. I therefore make a finding that
the defendant failed to establish that time was of the essence and that the
parties did not agree that the crane would arrive at Hwange by 2pm on the 25th
January 2012 as alleged by the defendant.
A J KERR, The
Principles of the Law of Contract, 4th Edition at page 451
states the position as follows:
''It is ascertainable if
performance is to take place ''immediately'' or ''as soon as possible,'' is ,
if one is not talking about contracts such as some cash sales over the counter
of a shop, a requirement for performance within a short period which, in the
circumstances is reasonable''
In casu it cannot be said that the arrival of the
plaintiff's crane at Hwange on the 26th January 2012, in the morning
was unreasonable regard being had to all the concerns the defendant had been
alerted by the plaintiff relating to the movement of the crane for long
distances.
The defendant therefore failed to discharge the onus on the
above issue.
2.
Was the arrival of plaintiff's crane at defendant's mine on
Thursday, 26th January 2012 a breach of the contract.
The position is now settled in our law that:
''Notice of cancellation
must be clear and unequivocal and takes effect from the time it is communicated
to the other party''
See R H CHRISTIE, The Law of contract in South
Africa, 3rd Edition page 597
See also Du Plessis v Government of the
Republic of Namibia 1995 (1) SA 603 at 605 E
A notice of intention to cancel must be such that the other
party is or ought to be aware of its nature, but it is not necessary to use the
word ''cancellation''. The intention to cancel may be made sufficiently
clear in other ways – AJ KERR, (supra) at page 462
On the evidence presented by the defendants they clearly
did not take any cognisable steps to cancel the contract. Indeed, they
permitted the crane driver to drive all the way from Bulawayo to Hwange without
alerting the plaintiff that they had an intention to resile from the
contract.
I am satisfied, that on the evidence led there is no basis
to find that the arrival of the crane on the morning of the 26th
January 2012 at Hwange amounted to a breach of the contract.
3.
Whether defendant entered into a contract with Hwange Colliery Company on
Wednesday 25th January 2012, for hire of another crane in order to
mitigate the damages
The facts show that when the plaintiff's crane driver
arrived at Hwange, the alternative crane had not commenced work. The
colliery crane only commenced work on the 26th January 2012 when the
plaintiff's driver was already on site. The defendant opted for the
Colliery crane because it turned out to be cheaper. I am persuaded to
agree with Jones when he testified that the Defendant was playing both
the plaintiff and the Colliery Company. He chose the crane that arrived
on site first and that turned out to be much cheaper. I, therefore reject
the suggestion that the defendant hired an alternative crane to mitigate its
loss. They hired the alternative crane with a settled intention to avoid
paying for the charges raised by the plaintiff.
4. Is
plaintiff entitled to claim US$ 10 649 from the defendant?
I am of the firm view that defendant's evidence that it tried and failed to
contact plaintiff during the course of the day on the 25th January
2012 is inadequate to absolve the defendant from having to effectively
communicate its intension to resile from the agreement. Apart from
the attempt to contact Jones on his mobile phonethe defendant had
access to other cellphone numbers, landline numbers and e-mail. These
numbers are all contained on one of the e-mails sent to the defendant by the
plaintiff.
I am, therefore satisfied that plaintiff is entitled to the relief it seeks, as
it effectively kept its side of the agreement and as a consequence incurred
financial losses. They provided the crane within a reasonable time as
contemplated by the parties. They are entitled to payment in terms of the
contract.
In the result, I make the following
order:
(a)
defendant is hereby ordered to pay the plaintiff the sum of US$10 649 together
with interest a temporae morae at the prescribed rate from the 7th
February 2012 to date of final payment.
(b)
Costs of suit.
James, Moyo-Majwabu and
Nyoni,Plaintiff's Legal Practitioners
Messrs
Wintertons c/o Majoko and Majoko,Defendant's Legal
Practitioners
