This is a claim by the plaintiff against the defendant for
ZAR17,353= for the repair, between 19 and 30 December 2008, of two fuel pumps.
The plaintiff also seeks interest at the prescribed rate from 27 January 2010
to the date of payment in full. In the pleadings, the plaintiff sought costs on
the ordinary scale but in his oral submissions counsel for the plaintiff
applied for punitive costs.
The defendant disputed the entire debt.
While six issues were referred to trial, it seems to me
that the only issue for determination is whether the defendant is indebted to
the plaintiff in the sum claimed or in any amount.
The plaintiff led the evidence of two witnesses. These were
its Managing Director, Michael John Brennan, and Manager, Feisal Suleman. In
addition, it produced three documentary exhibits. The defendant called the
evidence of its Managing Director, John Taurayi Mungwari.
It was common cause that on 19 December 2008 the defendant
requested the plaintiff to repair two diesel pumps. The plaintiff's personnel
opened a job card before stripping and examining each pump. The parts that were
fitted on each pump are listed at the back of each job card…,. The pumps were
repaired and collected by the defendant's employees on 30 December 2008.
There was a dispute between the parties as to who
physically brought the pumps for repair. Mr Suleman stated that they were
brought by Mr Mungwari. Mr Mungwari stated that it was too menial a function
for the Managing Director. He, however, failed to identify who did so. Mr
Suleman further stated that when Mr Mungwari brought the pumps he agreed to pay
in rands at the rate of ZAR2,000= per week commencing from the date of
collection. Mr Mungwari disputed the averment and stated that at that time the
currency of account was the local currency and payment was due in that
currency.
In a bid to demonstrate that the currency of account agreed
between the parties was the rand, the plaintiff produced exhibit 3, the schedule
of payments made by the plaintiff. Exhibit 3 shows that the defendant paid R240=
on 14 January 2009; R300= on 2 February 2009; R1,745= on 19 September 2009;
US$390=, converted at the cross rate of R7.5 to US$1, to give an amount of R2,945=,
on 26 October 2011; and US$189=, again at the cross rate of R7.5, to give an
amount R1,417=, on 31 December 2009. Mr Brennan and Mr Suleman collected the
cash payments on different dates from the stores man at the defendant's offices
and signed for the money in an A4 exercise book that was retained by the
defendant. They each stated that the money was paid in United States dollars
but was converted at the cross rate of the rand against the United States
dollar prevailing on each date of payment. The defendant paid a total of R6,647=
leaving an outstanding balance of R17,353=.
Mr Mungwari was adamant that he did not enter into any
agreement to pay in foreign currency with the plaintiff. He prevaricated on
whether or not the debt was paid out in local currency or in foreign currency.
He exhibited confusion in some of his responses. In one vein he agreed that the
debt was not fully paid and in another he maintained that it was fully paid
out. It seemed to me that he confused other repairs that were paid in local
currency before 19 December 2008 with the repairs to the two pumps in issue.
His version that the debt was reduced by payment in local currency that was
then converted into foreign currency by the plaintiff was incorrect. As he
could not dispute the accuracy of the plaintiff's schedule, he admitted that as
the legal tender in Zimbabwe, after 2 March 2009, was in multiple currencies,
he could not pay the last three payments in local currency that had virtually
been demonetized. He failed to lead any evidence to demonstrate the amounts
paid in local currency that he alleged were converted by the plaintiff into
rands. In the end, while maintaining that it was against company policy to
honour local debts in foreign currency, he admitted that his subordinates may
have paid out the amounts indicated in the plaintiff's schedule in foreign
currency.
My assessment of the credibility of the witnesses is that
the plaintiff's witnesses gave their evidence very well in regards to the
schedule of payments found in exhibit 3. It was supported by the probabilities
in regards to the payments made in exhibit 3. There was one area, however, that
the plaintiff's witnesses, especially Mr Suleman, glossed over. His testimony
suggested that he met Mr Mungwari once only on the date he delivered the pumps.
I did not understand him to say that the pumps were stripped and examined
whilst Mr Mungwari waited. It seems to me that the defendant would have known
the actual costs of the repairs on or after the date of collection; being on or
after 30 December 2008. It was not Mr Brennan or Mr Suleman's evidence that Mr
Mungwari collected the pumps after the repairs. Mr Suleman did not clarify when
Mr Mungwari agreed to liquidate ZAR24,000= at the rate of ZAR2,000= per week.
The gaps in that testimony were not cured by the dismal performance of Mr
Mungwari in the witness box. Mr Mungwari gave the impression that he was, by
virtue of his office, divorced from the central payment activities for the
repair of the two pumps. The probabilities did not support his version in
regards to the payments in exhibit 3.
I believed the plaintiff's witnesses and disbelieved the
defendant's witness in regards to exhibit 3.
It was common cause that in December 2008, the local
currency was in a free fall and had lost its lustre to local residents. It was
common cause that the defendant operated a transport passenger service between
Harare and Johannesburg. It was further common cause that the pumps were for
buses plying the Harare to Johannesburg route. It was further common cause that
the plaintiff lawfully held a foreign currency account with its bank. It was
further common cause that the spares required to repair the pump were sourced
from Europe and South Africa. It seems to me that the buses could only rack in
foreign currency for the defendant if they were operational. They could not be
operational unless they were repaired. The motivations for both parties to earn
foreign currency, and the loss of confidence by local residents in the local
currency, are probabilities that favour the plaintiff's version that the
defendant agreed to pay for the repairs in foreign currency.
Accordingly, I find that Mr Mungwari, on behalf
of the defendant, agreed, on 19 December 2008, to pay for the repair of the
pumps in rands.
