CHIWESHE JP: The applicant municipality seeks an order
compelling the respondent to release its plant, machinery and equipment which
it avers is unlawfully in the custody of the respondents.
According
to the applicant, sometime in June 2007 the parties entered into an agreement
in terms of which the respondent would repair the applicant's equipment at its
own cost. The cost so incurred would be
quantified by the respondent and forwarded to the applicant. The respondent would then use the equipment
for its own business for such period as would be equivalent to the costs
incurred in the repair of same. This
arrangement was meant to be of thirty days duration, subject to renewal. In terms of this "Memorandum of
Understanding" there was no specific provision for payment of any money by the
applicant. Contrary to this position,
the respondent claimed from the applicant the sum of $13 122 622 511.77. Although the applicant felt there was no
legal basis for such a claim it nonetheless resolved to settle this amount but,
despite payment, the respondent refused to release the equipment. This claim was followed by another one in the
sum of $446 144 473 404.72 (Zimbabwean currency) and a further claim in the sum
of US$281 840.00. Although the applicant
avers that all these claims were without legal basis, it nonetheless disbursed
in the final analysis a total sum of Z$271 000 000 000.00.
It
is patent from the applicant's rendition of the events leading to this dispute
that there are gaps in its account of these events. No explanation has been given why these
payments were being made against "baseless" claims on the part of the
respondent.
Further,
it is evident that there are material disputes of fact in this matter. I agree with Adv Mpofu that these disputes cannot be resolved on the papers as they
stand. The application ought to be
dismissed on that score alone. For
example, the parties differ on the nature of the agreement that they entered
into. This is a crucial matter because
the dispute between the parties can only be resolved by reference to the terms of
the agreement governing their relationship.
Oral evidence would have to be adduced.
The
agreement upon which the applicant bases its claim lists only four pieces of
equipment but the applicant claims ten pieces.
The respondent avers there were further agreements entered into by the
parties. The nature of such further
agreements, if any, must be interrogated.
The
applicant paid monies to the respondent but it is also averred by it that in
terms of the agreement between the parties, no monies were to be
exchanged. Further, the respondent avers
that the contract between the parties was oral, the terms of which are in
dispute. How does the applicant expect the
court to resolve such dispute without hearing "viva voce" evidence?
Under
these circumstances I cannot entertain the applicant's request that I take a
robust approach and attempt to resolve these disputes on the papers. These disputes are best dealt with by a trial
court. The parties must proceed by way
of action. I understand the respondent
has instituted action proceedings. These
are pending before this court. It
boggles the mind why if that is the case the applicant would have sought to now
proceed by way of application. See Oshea v Chiunda 1999 (1) ZLR 333.
For
these reasons I am inclined to dismiss this application. In my view this is an appropriate case in
which the respondent could have sought costs on the higher scale. It did not.
Accordingly
it is ordered as follows:
1. The
application be and is hereby dismissed in its entirety.
2. The
applicant pays the costs.
Muskwe & Associates,
applicant's legal practitioners
Messrs H. Mukonoweshuro & Partners, defendant's legal
practitioners
