In
March 2008, the plaintiff and the defendant concluded an agreement in
terms of which the plaintiff paid Z$2,750,000,000,000= (two trillion
seven hundred and fifty billion dollars) for 2,200 x 195R14 brand new
tyres which the defendant allegedly agreed to deliver by 2 March
2008. To date, the defendant has only delivered 200 tyres leaving a
balance of 2,000 tyres. The current market value of the tyres is
pegged at US$100 per tyre.
In
the event, the plaintiff is claiming delivery of the outstanding
tyres, alternatively, US$200,000= representing the current market
value of the tyres, interest, and costs of suit.
In
denying liability, the defendant avers that the plaintiff approached
and requested it to source the tyres for it from Solution Motors
(Pvt) Ltd since the defendant had previously dealt with Solution
Motors. The defendant paid the money to Solution Motors for the
procurement of the tyres. Solution Motors delivered only 200 tyres.
The defendant cannot be held liable for Solution Motors' failure to
deliver the tyres as the plaintiff knew about, and approved, the
involvement of Solution Motors. The defendant fulfilled all its
obligations in terms of the agreement between the parties.
The
plaintiff led evidence from only one witness, Richard Ziyavaya, and
closed its case. His
evidence was to this effect:
He
used to be employed by the plaintiff as its Finance Manager. He
represented the plaintiff in concluding exhibit 1 (the agreement
regarding supply of the tyres) though he signed it as a witness while
the General Manager, Mr Marozva, signed on behalf of the plaintiff.
On 3 March 2008 Patrick Makava, the defendant's representative in
the agreement, came to the plaintiff's offices. The two parties
were, at that time, both involved in the Reserve Bank of Zimbabwe
farm mechanisation project of manufacturing ox-drawn scotch carts. In
the discussion about this project the plaintiff's representatives
mentioned to Patrick Makava that they were looking for tyres for the
project. Patrick Makava told them that he had recently bought tyres
for his project and could buy them on the plaintiff's behalf from
the same source. He did not disclose the source. An agreement was
then entered into on 4 March 2008 whereby the plaintiff paid the
defendant Z$2,750,000,000,000= for 2,200 tyres which the defendant
was to deliver by 21 March 2008. However, the defendant failed to
deliver the 2,200 tyres by 21 March 2008.
Mr
Marozva, the plaintiff's General Manager, phoned the defendant and
the defendant promised to deliver in two weeks time. Nothing happened
and he wrote, exhibit 2 on 23 April 2008 demanding delivery within
seven days, failure of which legal action would be embarked upon. The
defendant responded via exhibit 3, dated 15 May 2008, assuring the
plaintiff that, despite facing some challenges, the tyres would be
delivered in a few weeks time. No delivery was done.
In
June 2008, the plaintiff, for the first time came to learn about
Solution Motors via exhibit 4, a letter written by that company
saying they were the defendant's suppliers of the tyres, promising
to deliver 200 tyres on 10 July 2008. Since the plaintiff had no
privity of contract with Solution Motors they ignored exhibit 4. The
plaintiff told the defendant about exhibit 4 and the defendant
confirmed that Solution Motors were the suppliers and that it had
been let down by them.
On
10 July 2008, the promised tyres were not delivered and Solution
Motors wrote exhibit 5 promising to deliver the 200 tyres by 30 July
2008. On 14 July 2008 the plaintiff wrote exhibit 6 to the defendant
and attached exhibit(s) 4 and 5 telling the defendant to deal
directly with its suppliers because the plaintiff was only awaiting
delivery of the tyres as per the agreement concluded between the
plaintiff and the defendant.
The
plaintiff only got a response from the defendant on 4 September 2008,
via exhibit 7, wherein the defendant was advising that its legal
practitioners would talk to Solution Motors and map the way forward.
Still, in September 2008, the plaintiff received exhibit 8 comprising
a letter from the defendant's legal practitioners, Scanlen &
Holderness, an acknowledgment of debt by Solution Motors to the
defendant in respect of the 2,200 tyres and a schedule showing when
the tyres would be delivered. Two weeks thereafter Solution Motors
delivered 200 tyres to the plaintiff. The delivery dates in the
schedule were never fulfilled, and, on pointing this out to the
defendant, it would only say it was trying to enforce the contract
with its suppliers.
The
plaintiff was later sent a copy of the summons wherein the defendant
was suing Solution Motors for the tyres.
In
August 2009 the plaintiff's Board resolved to sue the defendant
hence the current suit.
He
produced three quotations, exhibit(s) 9A, 9B and 9C, in support of
the US$100 average price for each tyre. Although the plaintiff paid
the defendant Z$2,750,000,000,000= for the tyres, the defendant paid
Solution Motors Z$1,895,500,000,000= according to exhibit 10, the
defendant's summons against Solution Motors. The plaintiff still
owes the Reserve Bank what it failed to deliver due to the
defendant's breach of the agreement to deliver the tyres.
With
that evidence the plaintiff closed its case.
Following
closure of the plaintiff's case, the defendant applied for
absolution from the instance. The application was opposed by the
plaintiff.
The
test for absolution from the instance was laid down by HERBSTEIN and
VAN WINSEN in The
Civil Practice of the Superior Courts in South Africa,
3rd
ed…, in these words:-
“The
lines along which the court should address itself to the question of
whether it will, at that stage, grant a judgment of absolution have
been laid down in the leading case of Gascoyne
v Paul and Hunter
1917
TPD 170, which contains the following formulation (per De VILLIERS JP
at 173):
'At
the close of the case for the plaintiff, therefore, the question
which arises for the consideration of the court is: Is there evidence
upon which a reasonable man might find for the plaintiff?…,. The
question therefore is, at the close of the case for the plaintiff,
was there a prima
facie
case against the defendant, Hunter; in other words, was there such
evidence before the court upon which a reasonable man might, but not
should, give judgment against Hunter? It follows from this that the
court is enjoined to bring to bear on the question the judgment of a
reasonable man, and 'is bound to speculate on the conclusion at
which the reasonable man of (the court's) conception not should,
but might or could arrive.' This is the process of reasoning which,
however difficult its exercise, the law enjoins upon the judicial
officer.'”
Locally,
the case of United
Air Charters v Jarman
1994 (2) ZLR 341 (S) is in point regarding the principle. At p343 B-C
GUBBAY CJ stated:-
“The
test in deciding an application for absolution from the instance is
well settled in this jurisdiction. A plaintiff will successfully
withstand such an application if, at the close of his case, there is
evidence upon which a court, directing its mind reasonably to such
evidence, could or might (not should or ought to) find for him.”
An
application for absolution from the instance stands much on the same
footing as an application for the discharge of an accused person at
the close of the State case in a criminal trial: Munhuwa
v Mhukahuru Bus Service (Pvt) Ltd
1994
(2) ZLR 382.
I
am also constrained to pay heed to the salutary caution hinted on by
BEADLE CJ in Supreme
Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd
1971 (1) RLR I(A) regarding the salient features the court should
bear in mind when considering what the judgment of a reasonable man
might be on the evidence adduced by the close of the plaintiff's
case. The learned CHIEF JUSTICE pointed out that:-
(a)
The court should bear in mind that the defendant has not yet given
evidence and cross-examined on it;
(b)
If the plaintiff has made some case for the defendant to answer and
the defence is something peculiarly within the knowledge of the
defendant, justice demands that he should be heard;
(c)
The general attitude of judges is that they should be very loathe to
decide upon questions of fact without having all the evidence on both
sides;
(d)
In case of doubt as to what the judgment of a reasonable man might
be, the safest course for a judge to take is that which allows the
case to proceed.
The
facts of the case, as gleaned from both the plaintiff's viva
voce
and documentary evidence, reveal that contrary to the defendant's
contention; the defendant did not expressly tell the plaintiff's
representative(s) that the tyres would be sourced from Solution
Motors or that the plaintiff requested the defendant to source the
tyres for it from Solution Motors.
Richard
Ziyavaya's evidence was that parties agreed that the defendant
would source the tyres for the plaintiff. The third party's
identity was never disclosed. Clause 2 of exhibit 1 seems to support
this. Exhibit 1 does not categorically reveal that the defendant was
a mere intermediary between the plaintiff and a third party let alone
Solution Motors. If Solution Motors had been disclosed to the
plaintiff there would have been no reason why the plaintiff would not
have dealt with Solution Motors from the outset or why exhibit(s) 2
and 3 would have been silent about Solution Motors' involvement.
Exhibit
4 is Solution Motor's letter addressed to the plaintiff announcing
that they were the defendant's suppliers and promised to deliver
200 tyres on 10 July 2008. This shows when Solution Motors came into
the equation for the first time. It is clear therefore that when the
agreement, exhibit 1, was concluded, there was no privity of contract
between the plaintiff and Solution Motors. This view is corroborated
by HC6016/08 wherein the defendant sued Solution Motors for the
delivery of the outstanding tyres, alternatively, their value as at
the date of judgment. Further corroboration of the same view is borne
out by exhibit 6 wherein the plaintiff wrote to the defendant
attaching exhibit(s) 4 and 5, letters by Solution Motors to the
plaintiff telling the defendant to deal directly with its suppliers.
Also, exhibit 8, which is an acknowledgment of debt by Solution
Motors to the defendant, shows that there was no privity of contract
between the plaintiff and Solution Motors.
Also,
the fact that the plaintiff paid the defendant Z$2,750,000,000,000=
for 2,200 tyres whereas the defendant paid Solution Motors
Z$1,897,500,000,000= is one of the indicia
showing
absence of privity of contract between the plaintiff and Solution
Motors.
Since
the defendant insists that there was such privity of contract then
justice demands that it be heard.
The
defendant's other plank of defence is that it undertook to enter
into a contract with Solution Motors for the benefit of the plaintiff
(stipulatio
alteri).
One
of the essential features of stipulatio
alteri
is that the stipulator and the promiser must intend to create a right
for the third party to adopt and become a party to the contract.
In
Graphics
Africa (Zimbabwe) (Pvt) Ltd v Rank Xerox Ltd
1989 (2) ZLR 292 (HC) it was held that, in contracts for the benefit
of a third party, there is no formalistic requirement of acceptance
of the benefit. The manifest intent of the third party should be
considered to ascertain whether it did indeed accept the benefit or
not. I may add here that until acceptance by the third party takes
place, the contract remains one between the actual parties and may be
modified or even cancelled.
In
the instant case, there is no indication from the plaintiff's
evidence that either the defendant undertook to enter into a contract
with Solution Motors for the benefit of the plaintiff or that the
plaintiff, when Solution Motors emerged onto the scene, accepted the
benefit. On the contrary, the evidence reveals that the plaintiff
wrote exhibit 6 to the defendant attaching exhibit(s) 4 and 5 alluded
to supra,
directing that the defendant deal directly with its suppliers.
This
conduct is anything but acceptance of any benefit accruing from the
contract between the defendant and Solution Motors!
The
plaintiff's acceptance of the delivery of the 200 tyres was not,
and could not, amount to acceptance of benefit for purposes of
proving existence of a stipulatio
alteri.
This can, at best, be termed a mere arrangement of convenience. Also,
contrary to the defendant's contention, taking this delivery
cannot, by any stretch of the legal imagination, amount to a
novation. Novation cannot be a one-sided affair.
The
lis
between the defendant and Solution Motors, in HC6016/08, is not
clearly directly for the benefit of the plaintiff. It seems to me
that it stands to immediately benefit the defendant who was
susceptible to being sued by the plaintiff in terms of clause 4 of
exhibit 1. If there were a stipulatio
or novation then the plaintiff should have sued Solution Motors in
its own right.
On
the totality of the various defences raised by the defendant, viz
stipulatio,
novation, impossibility of performance justice demands that as the
defendant shoulders the onus to discharge them, it must be heard and
be cross-examined on the same.
In
view of the foregoing, I consider that a reasonable man, on the
evidence adduced by the plaintiff, might find against the defendant.
Even if a reasonable man may not arrive at the above conclusion, I
would consider that it would not be far-fetched to hold that there is
a doubt as to what the judgment of a reasonable man might be hence
the safest course to take, at this juncture, is that which allows the
case to proceed.
In
the event I make the following order:-
1.
The application for absolution from the instance be and is hereby
dismissed.
2.
Costs to be in the cause.
3.
The parties shall mutually agree, in consultation with the Registrar,
on a convenient date for the continuation of the trial.
