Quotations and Orders

HH13-08 : JEOFREY G MUKORERA vs OCEAN BREEZE ENGINE & COOLING SYSTEMS
Ruled By: MAKARAU J

The distortions caused by the galloping inflation currently characterizing our economy are graphically shown, in part, by the claims that are being brought before the courts. The above, in my view, is one such example. While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions ...

While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions caused by inflation in the economy are not transported wholesale into the law thereby causing distortions of legal principles.

The plaintiff operates a butchery from Muzarabani Business Centre in Mashonaland Central. In 2003, he thought of adding to his assets by having a freezer room installed at the butchery. He approached the defendant, who, in or about September 2003, gave him a quotation for installing a 6x8x8 cubic metre cold room for $13 million. In terms of the written quotation, the plaintiff was required to pay 50% of the total cost as a deposit and to show confirmation of the order. A deposit in the sum of $5,4 million was duly paid on 29 September 2003 and installation was to be done in a week's time. On 17 October 2003, the defendant delivered the cold-room, ready to install and commission it. Upon realizing the error, the plaintiff declined to accept delivery and installation of the coldroom whereupon the defendant returned to Harare with the cold room. Efforts to get the defendant to return and install a freezer room were in vain, prompting the plaintiff to approach his legal practitioners for assistance.

In April 2004, the defendant refunded the sum of $1,955,000= to the plaintiff, retaining the sum of $3,445,000= as necessary expenses incurred in manufacturing and attempting to deliver the cold room to the plaintiff. Unhappy with this development, the plaintiff issued summons claiming a payment of the sum of “$13,000,000= of $2,480,000= which is current $657,200,000=, with room to in increase it to match the current costs of installing a freezer room at trial”…., together with interest at the prescribed rate from date of the deposit to date of payment in full and costs of suit.

At the trial of the matter, the claim was amended to $53 billion.

The matter was defended.

In its plea, the defendant denied that it ever quoted the plaintiff for the supply and installation of a freezer room and averred that it quoted it for the supply and installation of a cold room.

At the trial of the matter, the defendant was in default, and, in terms of Rules 59A and 60 of the High Court Rules, 1972 I called upon the plaintiff to lead evidence on the amount of his claim.

The plaintiff's evidence was largely a rehash of the facts of the matter as I have detailed above. In addition, the plaintiff adduced into evidence a quotation that he obtained from a company called Commercial Refrigeration in the sum of $202 billion. The date of the quotation is not given on the handwritten quotation which also includes a component of foreign currency.

When asked to explain his claim in the sum of $53 billion, the plaintiff had the following to say, in part:

“I am claiming an amount that has the same value as the amount that I paid to the defendant in 2003.”

He went on, further, to explain that the amount he is claiming is one quarter of the total amount of the quotation from Commercial Refrigeration just as the amount that the defendant retained was a quarter of the quotation it had given him.

At the commencement of the trial I was under the impression that the plaintiff's claim was one of damages.

It was with this response that it appeared to me that he is simply claiming a refund of the amount that the defendant retained as expenses of manufacturing the cold room and travelling to and from Muzarabani with the wrong refrigeration unit, not at its nominal value, but, at its appreciated value, taking into account the impact of inflation.

His claim appears to me to be one for a debt and not for damages arising ex contractu.

The plaintiff's evidence was to the effect that the sum of $3,445,000= that was retained by the defendant in 2004 now has the same value as $53 billion which he claims. It became clear to me, from this response, that the plaintiff is raising inflation as the basis of his claim.

The plaintiff's stance was re-affirmed by counsel for the plaintiff when he addressed me on the issue.

His argument was to the effect that the plaintiff is entitled to claim the same percentage of the amount that it will now cost to supply and install a freezer room as was the percentage of the amount that the defendant retained in 2004 to the cost of installing a cold room in 2004.

Judges have often used telling adjectives to describe submissions they did not expect from legal practitioners such as “startling” or “ingenious”. Neither term aptly describes my sentiments at being presented with this submission.

I hasten to remark that the matter before me, although set down for trial, proceeded as an application for default judgment.

Ordinarily, a request for default judgment is hardly denied, as, by his default, the defendant is taken to have admitted all the averments made by the plaintiff. I am also aware of the school of thought that holds the view that it is not for a judge or the court determining an application for default judgment to act as the unpaid and un-briefed counsel for the defendant who is in default and deny a plaintiff judgment on issues that the defendant may not have raised if in attendance. Thus, a court dealing with an application for default judgment is perfectly within its rights to enter a default judgment not on the merits of the matter but on the technical basis that the defendant is in default even in cases where it is of the opinion that a defence may have been available to the defendant.

There is, in my view, however, a limit to the non-participatory role that a court may play in an application for default judgment. In my view, where a claim is clearly not well founded in law, a court may not give judgment on such a claim simply on the basis that the defendant is in default. Similarly, where damages have not been adequately proved to the satisfaction of the court, judgment may not be entered in the claimed sum; again, simply on the basis that the defendant is in default.

The basis for drawing the limit to the non-participatory role of the court, in my view, is the fundamental principle that after the parties have made their submissions to the court, the decision or order that is made is solely that of the court and such decision or order must find a basis in law at all times.

In my view, the claim before me is a case compelling me to abandon my non-participatory role for two reasons;

(i) Firstly, I take the view that the plaintiff's claim, being a claim in which the alleged debt has been appreciated to take into account inflation, is badly founded in law. Courts will take inflation into account when assessing damages in certain delictual claims but inflation, on its own, cannot be a cause of action.

In Edward Marume and Another v Todd Muranganwa HH27-07, I had occasion to deal with the issue of inflation in another application for default judgment. The following were my views on the matter:

“In my view, the issue involves a detailed discussion of 'currency nominalism' and 'revalorization' and the place of such concepts in Zimbabwean Law.”

The concept of currency nominalism has been held to be applicable in all aspects of South African Law. See SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833. In view of the provisions of the Prescribed Rate of Interest Act, there is a strong case for arguing that the concept also underlies all aspects of Zimbabwean law and that revalorisation, or the appreciation of debts to take into account inflation has no place in our law.

Again, like in Edward Marume and Another v Todd Muranganwa HH27-07, I have not been adequately addressed on the issue.

I hold the view that the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.

Assuming that I have erred in classifying the plaintiff's claim as one based on inflation, and that properly it is one seeking damages for an alleged breach of contract, then, in my view, two other issues arise;

(i) Firstly, it has not been proved that the retention of the sum of $3,455,000= was wrongful in any way or that it constituted breach of the contract between the parties. In fact, it would appear to me that the parties were not ad idem as the plaintiff requested for a freezer room and the defendant supplied a cold room. The offer and the acceptance did not coincide and the parties never had a contract in my view.

Even if one were to be generous and hold that there was a contract that the defendant breached by supplying the wrong refrigeration unit, the damages suffered by the plaintiff for the alleged breach have not been adequately proved.

It cannot be said that the quotation from Commercial refrigeration in any way represents the correct loss of value in money between 2004 and the date of the hearing. It has also not been proved that the quotation by Commercial Refrigeration has any relationship to the quotation given by the defendant in 2003. One was quoting for a cold room of different dimensions and the other was quoting for a freezer room of entirely different dimensions.

How the one can be tendered as proof of the value of the other was not argued before me.

Despite much effort, I cannot figure out a possible argument on the relationship myself.

For the above reasons, I cannot accede to the prayer for default judgment in the matter in the amount prayed.

I have anxiously considered whether I can grant judgment in the sum of $3,455= that was retained by the defendant in 2004 together with interest thereon at the prescribed rate from the date of the retention to date of payment. The amount involved, even with interest, is so pitiful, in my view, as to make a mockery of the justice delivery system where I to order its payment. In m view, the plaintiff is best served by the order that I make below.

In the result, I make the following order:

1. The defendant is granted absolution from the instance.

2. The plaintiff is hereby granted leave, after effecting necessary amendments to his claim, and upon service of such on the defendant, to set the matter down for judgment in terms of Rule 58 of the High Court Rules, 1972.

3. There shall be no order as to costs.

HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.

The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.

At the commencement of the trial, the plaintiff applied to amend the damages figure or the summons to read $9,792,245,000 000 instead of $7,800,000,000. The amendment was meant to address the effect of inflation on the original figure. Counsel for the defendant did not oppose the application for amendment. I granted the application for amendment, and, consequently, the plaintiff's claim herein is for:

“(a) An order that the defendant supply and deliver to the plaintiff a total of twenty (20) IBM A50 desktop computers forthwith alternatively an order that defendant pays to plaintiff a total of $9,792,245,000,000 representing the current value of the said computers.

(b) Interest on the amount representing the value of the computers from the date of summons to the date of payment; and

(c) Costs of suit.”

It is common cause, that, on 23 February 2005 the plaintiff ordered from the defendant a total of thirty (30) computers. Each computer was quoted at a price of $9,860,400, bringing the total cost, including V.A.T. payment, to $340,183,800. This amount was then paid in full on 28 February 2005. The defendant, however, only managed to deliver ten (10) computers on 2 March 2005. This left a balance of twenty (20) computers.

It is the non-delivery of these twenty (20) computers that has led to this court action.

The defendant explains non-delivery by citing the failure to obtain the requisite foreign currency allocation from the Reserve Bank of Zimbabwe through the auction system which was then in operation. It is the defendant's position that both parties were fully aware that the amount paid by the plaintiff would be utilised for the purchase of foreign currency in order to meet the requirements of the defendant's foreign supplier, namely, a company called 'TriContinental Limited' (Tri-Continental).

However, the plaintiff's position is that delivery was to be effected soon after payment and the total amount paid represented the full payment for the thirty (30) computers ordered.

In view of the different positions taken by the parties, it was agreed that the issues for determination in this trial would be:-

“(1) What were the terms of the Agreement between the parties?

(2) Whether it was agreed, as between the parties, that the defendant would supply the computers upon receiving foreign currency allocation by the Reserve Bank of Zimbabwe.

(3) Whether the plaintiff is entitled to the order sought.

(4) Whether the defendant is liable to the plaintiff in damages.”

The plaintiff called two witnesses to support its case, and, through the witnesses, it submitted a total of nine (9) exhibits.

The first witness called by the plaintiff was Mr Patrick Gwara (“Mr Gwara”) who said he is currently employed by the plaintiff as a Stores Supervisor with the main responsibility of taking care of the plaintiff's stocks.

Mr Gwara testified that upon an evaluation of quotations the defendant was awarded the contract/tender to supply the plaintiff with thirty (30) computers. He said upon being paid the sum of $340,180,800 to cover the total cost of the computers, the defendant delivered ten (10) computers. The ten (10) computers were received by the plaintiff on 2 March 2005. That left a balance of twenty (20) computers already paid for.

It was Mr Gwara's evidence that at the time of placing the order with it, the defendant had indicated that it had twenty-five (25) computers in stock and 'it would get the other five (5)'.

He said, apart from paying the requisite purchase price for the computers, the plaintiff was not aware of the financial arrangements between the defendant and its suppliers.

He went further to say if the plaintiff had known that the defendant would face supply problems, it (plaintiff) would not have placed the order with the defendant. This was so because the computers were needed urgently for its Harare and Bulawayo offices.

Under cross-examination, Mr Gwara said he was not aware that his seniors had moved the delivery date to 1 July 2005 as indicted in the replication. He however maintained, that, as far as he was concerned, delivery was to be made soon after payment. He said that although the plaintiff had in the past accepted long delivery periods with respect to other contracts, this was not the case with respect to the thirty (30) computers because they were needed urgently.

The contract/tender had been awarded to the defendant on the basis that it had the computers in stock.

Mr Gwara denied knowledge of the offer by the defendant to refund the plaintiff. He said as far as he was concerned the plaintiff wanted delivery of the twenty (20) computers.

The second witness called by the plaintiff was Mr Mischeck Chigatse (“Mr Chigatse”). He said he is employed by the plaintiff as a Procurement Officer.

Mr Chigatse was, in that capacity, responsible for the procurement of goods and services for the plaintiff. He was, however, not aware of the issue of the thirty (30) computers since the contract had been entered into before he was employed by the plaintiff.

The witness, however, gave evidence on current prices of computers such as those forming the subject of the dispute herein. He said the prices ranged from $300 billion to $700 billion. His evidence was based on three (3) quotations obtained by the plaintiff. He said based on the quotations, the current price of a similar computer to the one that had been ordered by the plaintiff would be $489 billion.

The defendant called only one witness to support its case.

It called Mrs Doreen Nyamusara (“Mrs Nyamusara”). She said she joined the employ of the defendant in April 2005 as a Finance Manager but was, as from January 2008, promoted to the position of General Manager. She told the court that she was unaware of the details of the contract in issue since she joined the employ of the defendant when the contract had already been concluded. She was, however, involved in negotiations with the defendant's suppliers for the delivery of the remaining twenty (20) computers.

Mrs Nyamusara testified, that, at one stage the defendant had asked the plaintiff to participate in the auctions(s) for foreign currency. The plaintiff had refused to do so. She said after all efforts to obtain foreign currency had failed to produce results, the defendant had offered to refund the plaintiff. The plaintiff had, however, declined the offer, insisting that it wanted delivery of the computers.

Mrs Nyamusara also stated that the parties failed to resolve the matter amicably largely due to differences in the calculation(s) of interest. As a result of the differences, the matter was never resolved amicably. This was notwithstanding the fact that the defendant made a payment of $1,392,000 through the plaintiff's legal practitioners – which payment was still being held by the plaintiff's legal practitioners.

Under cross-examination, she agreed that the sum of $1,392,000 was too little to pay for the twenty (20) computers.

Also admitting that the type of computers originally ordered by the plaintiff had been phased out, Mrs Myamusara said a similar computer (ie A55 Lenovo) would, as per exhibit 24, cost $143,750,000,000.

Counsel for the plaintiff submitted that there was no doubt that delivery was to be effected immediately upon payment of the full purchase price. He said the issue of foreign exchange was only brought up in an effort to justify a clear breach of contract by the defendant. He said, that, in concluding the contract the issue of foreign exchange was never raised. He said the quotations which resulted in the award of the contract were in local currency – with the foreign exchange element having been taken into account. It was his view that if indeed the issue of foreign exchange had been a factor, the parties would have said so upon executing the contract.

He urged the court to dismiss the defendant's defence based on the shortage of foreign currency because it came as an afterthought.

Relying on RH CHRISTIE's The Law of Contract in South Africa 3ed, counsel for the plaintiff submitted that 'an impossibility to perform must be absolute'.

He argued that, in casu, that defence was not available, and, as such, the defendant was clearly in breach and was liable for the prejudice suffered by the plaintiff. To that end, counsel for the plaintiff prayed either for the delivery of the twenty (20) computers or payment of damages representing the current market value of the computers.

Counsel for the plaintiff submitted, that, if payment of damages were to be ordered, the sum of $9,792,245,000,000 would be reasonable because it would enable the plaintiff to procure the computers on its own. That value, he argued, had not been challenged.

The primary aim in asking for damages was to put the plaintiff to where it should have been were it not for the breach of contract by the defendant.

Counsel for the plaintiff further submitted that the issue of money paid to the plaintiff's legal practitioners should not be allowed to cloud the issues before the court. That money could still be recovered.

Counsel for the defendant submitted that the dispute was mainly on the issue of the delivery dates.

She said that the parties were not agreed on what was the delivery date. She, however, agreed that the defendant's only witness could not testify to the terms of the contract since it was concluded before she joined the defendant's employ.

Counsel for the defendant submitted, that, as per the plaintiff's replication, the delivery date in terms of the contract should have been 1 July 2005. That, according to her, meant there was no question of immediate delivery in line with the parties' conduct on previous supply contracts. She went further to suggest that the failure by Mr Gwara to explain the averment in the replication referring to 1 July 2005 supported the defendant's case in the sense that a delay of some four months after payment meant that the computers would be delivered only after the defendant had paid its supplier, namely, Tri-Continental. Payment involved foreign currency.

It was therefore counsel for the defendant's submission that the plaintiff, despite denial, was aware from inception that delivery of the computers would only be effected after the procurement of foreign exchange by the defendant. Accordingly, when that became impossible, it meant the defendant could no longer deliver as had been agreed.

The failure to obtain foreign currency was, in her view, a supervening impossibility which served to extinguish the defendant's obligations under the contract.

She said according to JOUBERT's General Principles of the Law of Contract, the defence of a supervening impossibility was available to the defendant. To that end, she quoted JOUBERT's General Principles of the Law of Contract …,where he states:-

“Performance may become either absolutely or relatively impossible after the conclusion of the contract. In the case of absolute or objective impossibility of performance the rule is undoubtedly that the duty of the debtor to perform is extinguished….,.”

On the basis of the above, counsel for the defendant submitted that it was improper for the plaintiff to insist on specific performance. In so doing, she argued, the plaintiff had contributed to its own loss.

She said the loss would have been mitigated if the plaintiff had accepted the refund offered in May 2005.

The defendant had, all the same, gone ahead to refund the plaintiff with a sum of $1,362,980=32. That money was still being held in trust by the plaintiff's legal practitioners. The amount, it was argued, had been calculated properly, and, therefore, the defendant's view was that the plaintiff had been refunded in full. There was therefore no basis for this action.

On the possibility of the court finding in favour of the plaintiff and ordering payment of damages, counsel for the defendant submitted that the figures quoted by the plaintiff were excessive and did not accurately reflect the current prices for the originally ordered computers.

She said although there was no case for damages, the defendant's own quotation of $143,750,000, would represent a reasonable figure.

The fact that the plaintiff's loss would have been mitigated if it had participated in foreign currency auctions or had accepted the refund as offered in May 2005 could not be ignored. Accordingly damages payable, if any, should be reduced, she argued.

Counsel for the defendant also urged the court to be cautious when evaluating Mr Gwara's evidence. She said this was so because Mr Gwara had denied knowledge of the refund issue yet there was evidence that correspondence on the issue was copied to him.

I shall, taking into account evidence from both parties' witnesses and submissions by their legal practitioners, now deal with the agreed issues for determination….,.

In dealing with this matter, I believe that a finding of whether or not delivery of the computers was subject to the availability of foreign currency to meet the defendant's suppliers' financial requirements will greatly narrow issues for consideration.

In order for that argument to succeed, the court has to be convinced, that, in paying the sum of $340,183,800 the plaintiff was fully aware that this was merely part payment which would go towards the purchase of foreign currency.

There must be evidence that the defendant made it clear to the plaintiff that delivery would be dictated by the availability of foreign currency to meet the requirement of Tri-Continental, its supplier. This is clearly so, because, apart from quotations and payment confirmations, the contract terms were not reduced to writing.

In casu, the evidence from papers and that led in court leads me to the conclusion that the defendant cannot avail itself to the defence of a supervening impossibility.

This is so because it is clear to me that the plaintiff gave the contract/tender to the defendant on the understanding that the computers were in stock and readily available. All what the plaintiff was required to do was to effect full payment and then delivery would follow immediately.

The defendant had indeed indicated to the plaintiff that it had the computers in stock - at least twenty-five (25) of them.

The plaintiff effected full payment on 28 February 2005. Payment was in accordance with the defendant's quotation for the delivery of thirty (30) computers.

Contrary to the defendant's legal practitioner's perception of Patrick Gwara, I found him to be a credible witness who knew exactly what took place when the contract was entered into between the two parties. His failure to know subsequent details of discussions between the plaintiff's senior management and the defendant's representatives, on the issue of delivery times and the refund, should not be allowed to carve a dent into his evidence.

The witness, Patrick Gwara, was adamant that the issue of foreign currency was never raised when the contract was granted to the defendant. He pointed out that if at all the plaintiff knew there would be problems of foreign currency the contract would not have been granted to the defendant. The plaintiff needed the computers urgently and the defendant had indicated that it had twenty-five (25) in stock and would look for the other five (5).

That evidence was never satisfactorily challenged in court.

All the defendant could say was that the computers were in stock at Tri-Continental.

Clearly, if that detail was necessary, the defendant could have revealed it to the plaintiff at the time of concluding the contract.

That was not done, and, as submitted by the plaintiff's legal practitioner, I hold the view that the price quoted in Zimbabwean dollars included the foreign exchange component.

Indeed, even upon the speedy delivery of ten (10) computers, there was no mention of a possible top up to cater for the foreign currency element required for the remaining twenty (20) computers.

It is also significant to note that full payment was made on 28 February 2005, and, within a few days (ie. 2 March 2005) ten (10) computers were delivered.

That reinforces the issue of immediate delivery upon full payment and the availability of computers in stock in Zimbabwe.

As already indicated, the defendant has also argued that failure to procure foreign currency rendered performance impossible, and, hence, the defence of a supervening impossibility.

As correctly argued by the plaintiff's legal practitioner, that defence is not available to the defendant.

Right from the inception of the contract, the defendant made the plaintiff believe the computers were in stock in Zimbabwe. That is why within three (3) days the defendant was able to deliver ten (10) computers.

The issue of foreign currency only came up as an excuse for failure to deliver.

I am, therefore, on a balance of probabilities, satisfied, that, upon making full payment on 28 February 2005, the plaintiff had fully discharged its obligation under the contract. That means, the issue of foreign currency was never raised when the contract was concluded and did not therefore form part of the contract terms.

Upon failure to reach an out of court settlement, the plaintiff remained ready to accept delivery. This remained the plaintiff's position up to the hearing of this matter.

To that end, I would reject the defence of a supervening impossibility because my finding is that, when the contract was made, the defendant assured the plaintiff of immediate delivery upon payment, as evidenced by the delivery of the first ten (10) computers. There was no basis for the plaintiff to ever think or imagine that the remaining twenty (20) computers were not in stock.

The contract was not subject to the defendant being availed foreign currency by the Reserve Bank of Zimbabwe. If indeed that were the case, the contract would have said so.

As was submitted by the plaintiff's legal practitioner, the issue of an agreement becoming impossible of performance is fully covered by R.H. CHRISTIE in his book 'The Law of Contract In South Africa 3ed…, where he writes:-

“The Roman law principle that a contract is a nullity if, at the time it was made, it was impossible of performance forms part of our law.

'By the Civil Law, a contract is void if at the time of its inception its performance is impossible: impossiblium nulla obligatio (D50.17.185).'

But, the principle thus stated may easily be misunderstood and requires immediate qualification in four respects:

(i) First, the impossibility must be absolute as opposed to probable. The mere likelihood that performance will prove impossible is not sufficient to destroy the contract.

(ii) Second, the impossibility must be absolute as opposed to relative. If I promise to do something which, in general, can be done, but which I cannot do, I am liable on the contract.

(iii) Third, the impossibility must not be the fault of either party. A party who has caused the impossibility cannot take advantage of it and so will be liable on the contract.

(iv) Fourth, the principle must give way to the contrary common intention of the parties. This intention may be expressed, as when a seller expressly represents or promises that the merx exists. If it is found not to have been in existence at the time the contract was made, he will be liable for damages for breach of his promises or for his false representation if fraudulent or negligent. Or the common intention of the parties may be implied, as in the case of the sale or lease of a res aliena. The seller or lessor impliedly undertakes to deliver the property or to pay damages if he is unable to do so.”

In casu, there is nothing to suggest impossibility at the time of contracting or to suggest any conditionalities.

There is also nothing to suggest that the issue of foreign currency led to a complete paralysis of the defendant's business. To date, it is still in the business of selling computers.

As already stated, it is my finding that the defendant clearly represented to the plaintiff that he had the computers in stock, and, since the plaintiff needed them urgently, he gave the contract/tender to the defendant.

In breach of contract, and without any fault on the part of the plaintiff, the defendant delivered ten (10) computers only, leaving a balance of twenty (20) computers.

Clearly, therefore, and in line with the principles of law enunciated by R.H. CHRISTIE in the above quoted passage, the defendant is liable for specific performance or damages: see Lupu v Lupu 2000 (1) ZLR 120 (S).

The plaintiff still insists on specific performance or payment of damages to cover the cost of similar computers at today's prices.

I also did not hear the defendant to say it cannot perform.

The defendant is still in the business of selling computers.

Quotations were produced to indicate current prices for similar computers. The defendant produced one quotation and argued that the plaintiff's prices were for superior machines. The defendant said that a computer similar to the one originally ordered would cost $143,750,000,000. The plaintiff, however, believes that, in order for it to be put back to where it would have been had the twenty (20) computers been delivered, a sum of $9,792,245,000,000 should be payable in the event of failure by the defendant to deliver. That amount is based on quotations for each similar computer on exhibits 8 ($382,455,561,600), 9 ($489,622,500,000) and 10 ($776,250,000). Given the effects of inflation, the plaintiff recommended the midway price of $489,622,500,000.

The defendant, on its part, and despite denying liability, insisted that it was possible to procure similar computers at the price it quoted (ie. $143,750,000,000).

Counsel for the plaintiff submitted that the matter of a refund should not be allowed to cloud the real issues before the court.

I agree.

I believe the payment of $1,392,000, through the plaintiff's legal practitioners, only serves to confirm a failed attempt to settle the matter out of court. In any case, Mrs Nyamusara, who testified for the defendant, agreed that the money was too little to cover the cost of twenty (20) computers.

I hold the view that a party that is in clear breach should not be allowed to dictate the amount of damages that should be paid to the party that is not at fault, and, moreso, an innocent party that will have fully met its obligations under a contract. To allow that would be to encourage parties to pull out of contracts on the strength of their capacity to pay damages.

In International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H), addressing the issue of specific performance, the late ROBINSON J…, had this to say:

“I would wind up by saying, that, if the right of specific performance is to be shown to have real meaning to businessmen, then, the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts, then, don't start crying, if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract.

In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of breach. Businessmen at fault will, therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them….,.”

I fully endorse the above sentiments.

In view of the foregoing, and having determined all the issues raised…, in favour of the plaintiff, I believe that, in casu, the circumstances demand that the relief prayed for by the wronged party, the plaintiff, should be given favour by this court.

Accordingly, I order as follows:-

1. That the defendant be and is hereby ordered to supply and deliver to the plaintiff twenty (20) IBM A55 (Lenovo) desktop computers forthwith;

2. That, in the event of failure to deliver as indicated in 1 above, the defendant be and is hereby ordered to pay the plaintiff damages in the sum of $9,792,245,000,000 forthwith;

3. That the amount referred to in 2 above shall be payable with interest at the prescribed rate from the date of summons to the date of payment; and

4. That the defendant shall bear the costs of this suit.

HH90-09 : INTERFRESH LIMITED vs MEGAPAK ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

The plaintiff in this matter, in terms of the summons as amended by consent at the trial, claims as against the defendant the specific performance of a contract to deliver 319,240 plastic bottles and 369,320 tearstrip closures. The defendant admits that it has failed to deliver the remaining quantity of bottles and closures originally contracted for but ...

The defendant admits that it has failed to deliver the remaining quantity of bottles and closures originally contracted for but denies that its failure constitutes a breach of contract because of the withdrawal, by the Reserve Bank, of its Basic Commodities Supply Side Intervention Facility (BACOSSI).

Evidence for the Plaintiff

Lishon Chipango is the plaintiff's Chief Executive Officer. His evidence was as follows.

In August 2007, the plaintiff launched a new product through its subsidiary, Mazoe Citrus Estates, requiring 2 litre plastic bottles with caps. Subsequently, on the 1^st of October 2007, Lishon Chipango met the Managing Director of the defendant (Martin Makomva) at the Reserve Bank's presentation of its Monetary Policy Statement. Martin Makomva indicated that the defendant had already received BACOSSI funding for making bottles and referred him to the defendant's Marketing Director (Albert Chitapi). After several meetings and phone calls, he sent an e-mail to Albert Chitapi on the 12^th of October 2007 [Exhibit 3] asking him to finalise a quotation for 700,000 bottles and caps.

On the 15^th of October he met with Albert Chitapi who confirmed that the defendant could supply the required bottles and caps over a period of five (5) weeks. On the 18^th of October he received an e-mail from the defendant [Exhibit 4] attaching a quotation for 700,000 bottles and caps. The total cost, inclusive of bottles, closures, cartons and freight charges, was quoted as a sum slightly over $53 billion.

The plaintiff then made arrangements to borrow this sum from Barclays Bank. Thereafter, Lishon Chipango called Albert Chitapi to reconfirm the price. After the price was re-confirmed, he effected payment of the contract price on the 9^th of November. On the 12^th of November he e-mailed Albert Chitapi asking him to confirm receipt of the payment [Exhibit 5A] and Albert Chitapi responded on the 13^th of November to confirm payment [Exhibit 5B].

Thereafter, the defendant's staff met with the plaintiff's staff to agree on delivery of the products. On the 20^th of November the parties emailed each other to confirm a delivery plan and the defendant then commenced delivery of the bottles and caps. Each delivery was accompanied by a delivery note and cumulative invoice showing the deliveries to date, as summarised in a schedule prepared by the plaintiff [Exhibit 7].

The invoices furnished by the defendant expressed the unit prices for the bottles and caps in the same amounts as were quoted in Exhibit 4. When the deliveries became erratic, Lishon Chipango e-mailed Albert Chitapi on the 3^rd of December [Exhibit 8A] and the latter responded explaining that the defendant had problems with its mould [Exhibit 8B]. At a subsequent meeting, in mid-December, the defendant's staff indicated that they were encountering machine breakdowns. On the 17^th of December, the plaintiff again queried the erratic deliveries [Exhibit 9A] and Albert Chitapi responded, on the same date [Exhibit 9B], raising pricing difficulties for the first time. On the 24^th of January 2008, Lishon Chipango met with Martin Makomva who indicated that the BACOSSI funding had ended and that the price for the remaining bottles and caps should be re-negotiated.

The proposed price adjustment was rejected and Martin Makomva wrote, on the 20^th of February [Exhibit 10], restating his position at the meeting. The plaintiff's lawyers then forwarded a letter of demand to the defendant on the 27^th of February [Exhibit 11].

Gabriel Chinembiri is the Managing Director of Mazoe Citrus Estates. He testified that the summary of deliveries [Exhibit 7] was prepared by Mazoe Citrus Estates. The deliveries listed from the 20^th of November 2007 to the 4^th of January 2008 amounted to 380,760 bottles and 330,680 caps. The prices listed in the delivery notes and invoices were exactly the same as those stated in the original quotation [Exhibit 4] with respect to the bottles, closures and cartons. However, the cost of freight charges was higher than was originally quoted.

Gabriel Chinembiri corroborated the testimony of Lishon Chipango as regards the confirmation of transport arrangements for the delivery of 700,000 bottles and caps. He also corroborated the evidence relating to the plaintiff's complaints concerning erratic deliveries and the defendant's explanations relating to plant problems and pricing issues.

On the 24^th of December 2007, he received an e-mail from the defendant [Exhibit 12A] stating that the old price would only apply to 300,000 bottles and caps as agreed at a meeting held on the 17^th of December. He refuted any such agreement between the parties, having regard to his email of the same date to the defendant [Exhibit 9A] as well as the e-mail from the plaintiff to the defendant on the 28^th of December [Exhibit 12B].

Evidence for the Defendant

Martin Makomva has been the Managing Director of the defendant for the past 9 years. He confirmed his meeting and discussion with Lishon Chipango on the 1^st of October 2007. He told Lishon Chipango that the defendant had already benefited from the BACOSSI scheme and would therefore be able to supply products at lower competitive prices. He then referred Lishon Chipango to Albert Chitapi.

His evidence was that the plaintiff's order required about 6 to 8 weeks to fulfil. In the event, the order could not be met in full because the Reserve Bank only availed BACOSSI assistance to the defendant for one month. The funding was stopped at the end of September 2007 and covered customers' orders for the month of October only. Consequently, the defendant wrote to the Reserve Bank, on the 29^th of November [Exhibit 13], pointing out that the BACOSSI material had run out and that this had impacted significantly on the defendant's pricing structure entailing a ten-fold increase in costs and prices.

Martin Makomva himself had previously written to the National Incomes and Pricing Commission (NIPC), on the 22^nd of November [Exhibit 14], requesting its approval of price adjustments in light of the defendant's cost build-up. This was followed by further applications to the NIPC on the 28^th of November [Exhibit 15], 30^th of November [Exhibit 16], and 10^th of December 2008 [Exhibit 17]. In early December, the defendant received NIPC approval to adjust prices in response to one of the applications.

On the 17^th of December he met with staff from Mazoe Citrus Estates to discuss pricing and supplies relating to the plaintiff's order. New prices were agreed at that meeting subject to clearance from Lishon Chipango. The latter refused to accede to the revised prices at a meeting in January 2008 and Martin Makomva then wrote to him, on the 20^th of February [Exhibit 10], pointing out that the BACOSSI facility had terminated and suggesting that supplies be continued at revised prices. This offer was rejected by the plaintiff.

According to Martin Makomva, the current cost of a bottle and cap is US23 cents. The money paid by the plaintiff, in November 2007, only covered the cost of what was actually supplied, and, therefore, the balance of the plaintiff's order cannot be met at current prices.

The entire contract was premised on the continuation of the BACOSSI facility.

Under cross-examination, Martin Makomva conceded that in terms of the conditions stipulated in the quotation [Exhibit 4] the goods were to be despatched once payment had been made into the defendant's account and that payment of the full contract price was confirmed on the 13^th of November 2007. He also accepted that the first change in unit prices was only reflected in an invoice generated on the 24^th of December, over two (2) months after the original quotation. The prices were increased after National Incomes and Pricing Commission (NIPC) approval was granted. However, this was not communicated to the plaintiff in any written form nor was there any clear agreement between the parties for the prices to be increased.

Albert Chitapi is the Marketing Director of the defendant. He confirmed that the defendant had forwarded the quotation [Exhibit 4] to the plaintiff on the 18^th of October 2007 and that he had agreed with Lishon Chipango, over the telephone, that the defendant would be able to deliver 700,000 bottles and caps as and when they became available.

He also confirmed receipt by the defendant of the plaintiff's payment of $53 billion on the 9^th of November. Deliveries of the goods then began on the 20^th of November and continued until it became necessary to review the prices because of the stoppage of BACOSSI assistance. He then met Gabriel Chinembiri and other Mazoe Citrus Estates staff on the 17^th of December and agreed on a new pricing structure. However, he conceded that the e-mails between the parties, on the 17^th and 18^th of December [Exhibits 9A, 9B & 9C], do not reflect any agreement on new prices and that subsequent emails, on the 24^th and 28^th of December [Exhibits 12A & 12B], make it clear that there was no such agreement. He further conceded that the agreement with Mazoe Citrus Estates was subject to confirmation by the plaintiff and that no one representing the plaintiff was present at the meeting.

Under cross-examination, Albert Chitapi explained the sequence of the conditions set out in the defendant's standard form quotation [Exhibit 4] as follows:

(a) The quotation is sent to and received by the customer;

(b) The latter must confirm availability of the product before making payment;

(d) Delivery of the product then commences.

The price change stipulation only comes into play before confirmation of product availability and before payment of the purchase price is effected. Once product availability is confirmed and the purchase price is paid, any price change cannot be imposed.

In the instant case, the plaintiff did not confirm the availability of the goods between the date of the quotation and the date of payment. Nevertheless, despite that failure to confirm, the defendant accepted the plaintiff's payment of $53 billion as the full purchase price. Moreover, the defendant only increased the unit prices on the 24^th of December 2007 after National Incomes and Pricing Commission (NIPC) approval of the new pricing structure.

Contractual Conditions

The principal issue for determination in casu is whether the defendant is absolved of its liability to deliver the balance of the plaintiff's order by virtue of the conditions pleaded in paragraph 2 of its plea as amended. In essence, the defendant's plea is that delivery of the remaining goods was subject to;

(a) The continued availability of the BACOSSI facility; and

(b) The express term stipulated in the quotation that prices were subject to change at any time without notice.

As regards the BACOSSI facility, there is little doubt that the defendant's pre-existing access to the facility was the principal factor that enabled it to charge a considerably lower price for the products required by the plaintiff and that this in fact influenced the plaintiff to enter into the contract with the defendant. However, there is nothing in the testimony or documentation before this Court to indicate that the continued availability of the facility after the plaintiff's order had been placed and confirmed was a condition upon which the contract was premised. Moreover, the fact that the defendant's access to the facility would cease after one month was never communicated to the plaintiff at any stage before the conclusion of the contract.

The plaintiff's order was to be fully delivered within 5 weeks (according to Lishon Chipango) or 6 to 8 weeks (according to Martin Makomva). The first indication of the BACOSSI facility having terminated was only given at a meeting between Lishon Chipango and Martin Makomva on the 24^th of January 2008 - almost 11 weeks after payment of the full contract price had been effected. On these facts, it is abundantly clear that the continued availability of the BACOSSI facility was not a condition for the due performance of the contract between the parties.

As for the conditions set out in the plaintiff's quotation, it is clear that the price change stipulation could only have come into play before confirmation of product availability and before payment of the purchase price was effected. In this respect, Albert Chitapi had no option but to concede that once product availability was confirmed and the purchase price was paid, any subsequent price change could not have been contractually imposed.

In the instant case, Lishon Chipango met with Albert Chitapi on the 15^th of October 2007 to confirm the defendant's capacity to deliver 700,000 bottles and caps over a period of 5 weeks. On the 18^th of October, the defendant forwarded its quotation for the 700,000 bottles and caps. Thereafter, Lishon Chipango called Albert Chitapi to re-confirm the price and, having reconfirmed the price, he proceeded to effect payment of the full contract price of $53 billion on the 9^th of November. On the 13^th of November, Albert Chitapi confirmed receipt of the payment by the defendant. Subsequently, on the 20^th of November, the parties confirmed a delivery plan and the defendant then commenced delivery of the bottles and caps.

Given this sequence of events, it is very clear that the defendant accepted the plaintiff's payment of $53 billion as the full purchase price before commencing delivery of the contracted goods. Thereafter, the defendant was contractually precluded from changing the purchase price as it purported to do on the 24^th of December 2007. Indeed, it would be absurd in any commercial transaction to allow the seller to alter the contract price after he has accepted the agreed amount in full payment and begun delivery of the contracted goods in accordance with an agreed delivery plan.

Specific Performance

It is settled that a plaintiff who elects to enforce a contract is entitled to specific performance where the defendant is in a position to perform the contract – because justice demands that those who enter into contracts should fulfil their obligations. See Farmers Co-op Society v Berry 1912 AD 343…,; Smith & Ors v Zimbabwe Electricity Supply Authority 2003 (1) ZLR 158…,.

However, the Court has a discretion to refuse to grant an order for specific performance on several grounds. In particular, a decree of specific performance might be declined, inter alia, where it would operate unreasonably hardly on the defendant or where it would produce injustice or be inequitable in all the circumstances. Moreover, the Court is not confined to the circumstances prevailing at the time that the contract was entered into and is at large to consider the circumstances at the time that specific performance is claimed. See Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A)…,; Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)…,.; CHRISTIE: The Law of Contract in South Africa (3^rd ed.)…,.

In the instant case, it is submitted that an order for specific performance would cause undue hardship to the defendant. More specifically, it is argued that the BACOSSI facility was only availed to the defendant for one month and that the defendant would now have to incur its expenses in foreign currency. It is further argued that it would be unduly inequitable to require the defendant to deliver the outstanding balance at twice the original cost (in local currency) and that the plaintiff has not suffered any loss as a result of the defendant's failure to deliver.

Having regard to all the relevant circumstances, both past and present, I am unable to see any merit in these submissions.

Looking, firstly, at the plaintiff's position, it is not disputed that it obtained a Bank loan in order to pay the contract price and that it would be required to repay that loan with interest. Moreover, as a result of the defendant's failure to deliver the contracted goods timeously, the plaintiff was unable to fulfil the projected sales of its own product. On these facts, it is difficult to sustain the argument that the plaintiff has emerged materially unscathed from the transaction in casu.

Turning to the defendant's situation, it is common cause that the defendant had already availed itself of the BACOSSI facility on very favourable terms before entering into the present contract. Armed with that commercial advantage, it then promised to deliver to the plaintiff a quantified amount of goods at an agreed price and within a specific period. Before making that promise, the defendant was presumably equipped with all the information and material resources that it required in order to make an economically sound decision on the matter. In these circumstances, the only inference that one can reasonably draw is that the defendant's failure to deliver, as promised, was attributable to its failure to exercise due commercial diligence. It has obviously mis-managed and squandered the financial advantage afforded by the BACOSSI facility and cannot now entreat the Court to condone its commercial incompetence.

Disposition

It follows from all of the foregoing that the defendant is liable to deliver the outstanding balance as contractually agreed and that the plaintiff is entitled to an order for specific performance of the contract. However, having regard to the evidence before me, I do not think that it would be either feasible or equitable, at this juncture, to expect the defendant to comply with its contractual obligations within the period of 7 days as per the relief sought by the plaintiff. In my view, a longer period for due compliance would more aptly meet the justice of the case.

In the result, judgement is entered in favour of the plaintiff as against the defendant as follows:

(i) The defendant be and is hereby ordered to deliver 319,240 (2 litre) plastic bottles and 369,320 tear-strip closures to the plaintiff within 30 days of the date of service of this order upon the defendant.

(ii) The defendant shall pay the costs of suit.

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

The plaintiffs are husband and wife, residing at..., whereas the defendant is a registered company in the business of constructing and refurbishing swimming pools. Sometime in October 2006, the plaintiffs contracted the defendant to refurbish their swimming pool with mabelite finish. The defendant provided a written quotation of $7,904,235=. It is admitted that the plaintiffs paid the ...

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture. In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that ...

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture.

In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that whilst he had performed his side of the bargain, by paying the agreed price, the defendants, in breach of the agreement, had failed to deliver all the items contracted for leaving the items forming the subject matter of this suit outstanding. In particular, the plaintiff averred that, in terms of the agreement between the parties, the defendants would manufacture and deliver a 7 piece dinning room suite, a side serve, a 3 piece coffee table set, a 2 piece side board, a 3 piece room divider and a wall mirror. In breach of the agreement, the defendants failed to deliver the side board, the room divider and the wall mirror.

The suit was defended.

In its plea, the first defendant averred that the plaintiff made inquiries about the cost of items he required and was given a quotation which was valid for a limited time. He then made payment on the quotation outside the lifetime of the quotation, and without first making reference to the defendant, with the result that the amount he paid was only sufficient for the manufacture of the items that were delivered to him.

At the pre-trial conference of the matter, the parties agreed that the issues for determination at the trial of the matter were;

(a) Whether the plaintiff is owed the outstanding items of furniture; and

(b) Whether the parties varied the agreement between them to the effect that the defendant would only manufacture the items that it delivered.

The matter was thus set down for trial before me.

At the trial, the plaintiff gave evidence. His evidence was as follows. He is a businessman. In December 2007, he visited the first defendant's factory. He was taken around the place and was shown other items that the defendant had manufactured. He requested the manager to tailor-make the items that he required. To that end, he arranged for the manager to visit his flat and take some measurements.

This was duly done.

The manager left him with catalogues from which he and his wife could select what they thought was suitable. He was given a quotation upon which he successfully negotiated a discount. He was also given a Bank account into which he was to deposit the amount reflected on the quotation. He told the defendants that he was going to dispose of some shares and that this would take some time. The second defendant assured him that this would not pose any problems. As soon as his shares were sold, he deposited the amount reflected on the quotation into the defendant's Bank account. He paid the deposit a week or two after the date appearing on the quotation. When his shares were sold, he told the defendant that he was going to make the transfer and wanted to know whether there had been any changes to the prices. The second defendant assured him that there had been no changes and there would be no problem with his deposit.

Apart from the quotation, nothing else was reduced to writing as between the parties. The witness was shown a copy of the quotation which he identified. Same was adduced into evidence.

The plaintiff proceeded to testify that, after some arguments, the defendant delivered part of the ordered furniture leaving the items in dispute outstanding. He demanded for the delivery of the remaining items, firstly, by word of mouth and then by a letter of demand.

In conclusion, the plaintiff testified that at not time did he discuss the issue of revisiting the pricing of the order as suggested by the defendants. He insisted that, after paying the amount reflected on the quotation, he was entitled to delivery of the outstanding items even if he paid outside the lifetime of the quotation as he had advised the defendants that he needed time to sell his shares.

The witness impressed me as an articulate and confident man. He was very clear as to what the defendants were obliged to do under the contract and was keen to see them held strictly to the written terms of the contract, an attitude that evoked in me memories of passages in the Shakespearian play; Merchant of Venice.

The witness was wordy in his responses to questions put to him under cross-examination and would at all times maintain his stance that he performed his side of the bargain by paying the contract price in full.

In my view, the factual issue that falls for determination in this suit is whether the parties varied the written terms of the quotation to allow the plaintiff to make payment of the quoted price outside the lifetime of the quotation.

On this point, the plaintiff did not testify with his characteristic clarity and confidence. His evidence, as detailed above, was to the effect that that he spoke to the second defendant when his shares had been sold and asked him if there were any changes to the quotation. He was told that there were none.

I did not believe the plaintiff in this regard.

Firstly, I did not believe him when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He is very precise though not always concise. He knows the date when he made the payment. He simply chose not to tell me the date. I surmise that he chose not to disclose the date because he thought it would detract from his case by corroborating the evidence of the defendants that he made his payment some three to four weeks after the quotation had lapsed.

Secondly, it is highly unlikely that the second defendant, when and if telephoned, would have advised the plaintiff that there were no changes in the price especially in the environment during which the contract was concluded. The defendants testified that their quotations were now valid for 3 days only as prices were constantly changing. It is therefore highly improbable that, after two or three weeks, prices on the quotation had remained static.

After testifying, the plaintiff called one Custon Muchepa (“Custon”). Custon used to work for the defendants and was the first defendant's manager at the time. He is the one who prepared and issued the plaintiff with the quotation. On a date he did not give, the plaintiff telephoned him to advise that he had made payment on the quotation. He then received a call from the workshop requesting him to prepare a bill of materials for work on the plaintiff's order to begin. He confirmed that part of the plaintiff's order was delivered and the balance was promised. The balance of the order was never delivered. Out of frustration and other misunderstandings, he left the first defendant's employment before delivery of the remaining items had been made.

On the material dispute of fact between the parties, Custon Muchepa did not have any personal knowledge as to whether the parties agreed to vary the lifetime or validity period of the quotation. He was not present when the plaintiff allegedly telephoned the second defendant to establish whether there were any changes to the prices before he, the plaintiff, made payment. He was simply advised by both that payment had been made.

The witness gave his evidence generally well. He however could not testify on the material fact in dispute in this matter as he was not present when the two allegedly discussed the issue. Further, whilst he could give quotations, he was not in charge of the finance department and would not know why work on the plaintiff's items was stopped.

In my view, the evidence of this witness, did not take the plaintiff's case further than where the plaintiff himself left it.

After the evidence of this witness, the plaintiff closed his case.

The second defendant gave evidence on his own behalf and on behalf of the first defendant. His evidence was as follows;

He is a Director of the first defendant. He recalls that the plaintiff came to the defendant's workshop where he was given a quotation. The quotation was supposed to be valid for three days. The plaintiff was also given the first defendant's account number for the purposes of making payment. Prior to the parties concluding the transaction, the plaintiff informed him that he had funds that were maturing sometime which he would use to fund the contract. He then left his manager to prepare the quotation. After three weeks, he received a report from his manager that the plaintiff had made payment, by direct deposit, into the first defendant's account. He checked the account and confirmed the deposit. He then telephoned the plaintiff and confirmed the deposit. He however advised the plaintiff that the deposit was now insufficient to cover the order. The plaintiff, in turn, advised him that he had no further funds and that the parties should re-negotiate. The first defendant started manufacturing the items of furniture that the parties had agreed were equivalent to the deposit. When the plaintiff was advised of this, he said the parties should discuss the issue further. The defendants delivered the items that were equivalent to the deposit. After delivery, he telephoned the plaintiff for a meeting. The plaintiff insisted that he had paid for the entire order and demanded delivery of the remaining items.

The witness gave his evidence well. He did not seek to exaggerate. He was forthright in his responses to questions put to him under cross-examination. He impressed me a being honest and truthful.

I particularly believed him when he testified that he only received the report that payment had been made from Custon Muchepa, meaning that he did not speak to the plaintiff before the plaintiff made the deposit. He thus did not agree to extend the validity of the quotation before payment was made. His evidence in this regard gains corroboration from the testimony of Ronald Mpopoma who testified after him.

Ronald Mpopoma's evidence was to the following effect;

He is son to the last witness and works for the first defendant as Clerk. He confirmed that ordinarily, the defendants were giving quotations valid for only three days. He thus expected the plaintiff to make a payment after three days of obtaining the quotation. Instead, he received a report, after three weeks, that the plaintiff had made payment on the quotation. The report was made to him by Custon Muchepa. He then telephoned the plaintiff to come and discuss the issue. At the meeting, the plaintiff was advised that his deposit was insufficient to meet his order. It is at that stage that the parties agreed that the defendants would only manufacture those items that were equivalent to the amount of the deposit. The parties were to further agree on the remaining items. On that understanding, the witness gave the word for work to commence on the plaintiff's order.

Regarding Custon Muchepa, the witness testified that he fired him after he realized that there was an unhealthy relationship between him and the plaintiff and that the two may have diverted the defendants' jobs to the competition.

In my view, the witness gave evidence that was largely common cause save for the information on how Custon Muchepa left employment. Regarding the material issue in dispute, he was clear that the plaintiff was made aware of the insufficiency of his deposit when such was made. In this regard, he corroborates the evidence of the second defendant in a material respect.

After this witness, the defendants closed their case.

In his closing submissions, counsel for the plaintiff correctly submitted, in my view, that the first issue I have to determine is whether or not the parties had a contract, and, if so, what the terms of the contract were.

In answer to the questions posed by the first issue, he submitted that the parties had a verbal contract for the manufacture of the furniture items specified in the quotation and for the price stipulated in the quotation.

I am unable to agree that the parties unconditionally entered into a contract for the manufacture of the furniture items listed in the quotation. In my view, the quotation that was issued to the plaintiff by the defendants was an invitation to treat. It was the offer to do business with the plaintiff. The terms of the offer were endorsed on the face of the quotation.

It may be pertinent, at this stage, to observe that while the defendants testified that at the time they were issuing quotations valid for only three days, in casu, the quotation clearly stated on its face that it would hold for a week. Thus, notwithstanding their policy in this regard, they were bound by the period given on the face of the quotation.

In my view, the plaintiff could have validly made payment within one week of the quotation and such payment would have bound the defendants.

The plaintiff however did not make payment within one week. It is not clear when he made payment. As observed above, he has chosen not to take the court into his confidence to reveal the actual date on which he made payment. He has given the period as between 7 and 14 days. The defendants have given it as between three and four weeks. I am none the wiser as to when payment was made.

The onus lies squarely with the plaintiff to show that payment was made in terms of the offer made to him. The confusion as to when he accepted the offer can only be fatal to his claim and not to the defence.

The plaintiff has approached the court ex contractu. He alleges that he had a binding contract with the defendants. He further alleges that while he performed his side of the bargain, the defendants are in breach and should be compelled to perform.

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.

In casu, it is common cause that the quotation given to the plaintiff constitutes the offer that was made by the defendants.

It is the settled position in the law of contract that an offer can lapse through the effluxion of time. This means that after the time set in the offer for acceptance has expired, the offer is no longer open to acceptance for the birthing of a valid contract. The point was settled in Laws v Rutherford 1924 AD 261 and has held since. At 262, INNES CJ had this to say:

“Speaking generally, when the acceptance of an offer is conditioned to be made within a time limit or in a manner prescribed by the offeror, then the prescribed time limit and manner should be adhered to.”

In casu, the offer was valid for one week. The one week lapsed before the plaintiff had accepted it. His purported acceptance of the offer, after the one week, was of no force and effect.

Put differently and conversely, acceptance of an offer must always correspond to the offer. If it does not, it constitutes a counter offer and no valid contract is birthed on the original offer.

The plaintiff has not, like the appellant in Laws v Rutherford 1924 AD 261 pleaded that the defendants waived their rights to insist on payment within the week. He, instead, sought to argue that the defendants extended the time within which the offer could be accepted. I have found above that I do not believe his testimony in this regard. There was no such variation. His offer of the defendant's offer had to be within a week of the offer. It was not.

Further, he has not sought to argue that the defendants accepted his counter-offer to pay the price at his own time.

In the circumstances, it is my finding that the plaintiff has failed to establish the contract that he seeks to rely on for an order compelling the defendants to deliver the remaining items of furniture. Payment of the price on the quotation made when the offer was no longer open could not bring about an enforceable contract between the parties.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendants costs.

HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The plaintiff in this matter is an English teacher at a local girls school. In August 2007, he was in the process of building a residence for his family in one of Harare's suburbs. He approached the defendant for steel as per the diagram drawn up by his engineers. He was given a quotation of the cost of the material that he required. Some days later, he returned to the defendant and made payment of the amount reflected on the quotation by way of a bank transfer.

He furnished the defendant with proof of payment and was promised delivery of the steel.

He checked on progress of the delivery and was advised to give the defendant a few more days. He checked again and was referred to the defendant's Branch Manager at the Harare outlet. He was informed that the defendant was having difficulties in obtaining some of the steel that he had ordered and that the defendant was in fact considering refunding to him the amount he had paid for the steel that was unavailable. He insisted on getting all the steel that he had ordered from the defendant.

He then sought legal advice on the matter and after he had delivered a letter of demand from his legal practitioners, to the defendant, he received delivery of the bulk of the steel he had ordered, save the two items that form the subject of this suit.

On 16 October 2009, he discovered that the defendant had reversed part of his electronic money transfer and had returned into his account the cost price of the steel that had not been delivered. He, in turn, reversed the re-deposit. On the advice of his engineers, he bought part of the steel that the defendant had failed to deliver from some other source to protect his building project from the rains. Still aggrieved by the defendant's failure to deliver the outstanding items, he caused summons to be issued out of this court claiming delivery of the 2.147 tonnes of Y12 steel and the 0.085 tonnes of ANN wire.

The suit was defended.

In its plea, the defendant, whilst admitting that it gave the plaintiff the quotation that was adduced into evidence by consent, averred that at the time of giving him the quotation, the plaintiff was advised that the Y12 and ANN wire were not in stock and were currently not available in the country and may have to be imported. It was further averred that the plaintiff agreed to wait on his entire order until the two items of steel were available. The defendant thus conceded, in its plea that, the Y12 and ANN wire remained undelivered as it failed to source the two products locally and also failed to access foreign currency to import the steel. It denied that, in the circumstances, it was liable to deliver the outstanding steel to the plaintiff as claimed.

At the trial of the matter, the plaintiff gave evidence.

His narration of the facts, which are largely common cause, is as captured in the opening paragraph of this judgment. It was his specific testimony that he was not advised, at the time he made payment to the defendant for the entire order, that the defendant was experiencing any difficulties in procuring the Y12 and ANN wire. He was only told this after he had checked with the defendant's Branch Manger as to why his order was delaying after he had made the requisite payment. He did not know where the defendant was sourcing its steel. When he was advised that the defendant had secured some of the steel that he had ordered, he informed the defendant that he would wait until all the steel he had ordered was available.

The witness gave his evidence very clearly. He came across as a firm and unyielding man. Under cross –examination he remained firm that all he wanted was the steel that he had paid for. He was clear that he was not seeking damages from the defendant but was simply holding the defendant to the contract that it has concluded with him.

While the witness was quite firm about the propriety of his claim in the circumstances, I did not believe him when he testified that he was not made aware of the unavailability of the Y12 and ANN wire when he made payment. Given the unyielding stance that he has revealed in the witness box, it is most unlikely, in my view, that he would have accepted the delay in the delivery of the entire order had he been unaware that part of the order was unavailable at the time. It appears to me that he was prepared to wait for the defendant to receive the items from its supplier because he was aware that the products were not in stock at the time. According to his testimony, it was only when the defendant sought to refund the cost price of the outstanding steel that he sought legal advice on the matter and decided to hold the defendant to the written quotation.

After testifying as detailed above, the plaintiff closed his case without calling any other evidence, prompting counsel for the defendant to apply for absolution from the instance on the basis that before me was insufficient evidence upon which I could find for the plaintiff.

I dismissed the application on the turn and indicated that my reasons would follow. It is convenient that I now set them out. These they are.

In making his application, counsel for the defendant was quite alive to the fact that the plaintiff was approaching the court for an order for specific performance without an alternative claim for damages.

In his view, there was an undisputed supervening impossibility that prevented the defendant from fully discharging its obligations under the sale agreement. He further submitted that the plaintiff could not dispute that the defendant failed to secure the outstanding steel from its local supplier and also that it failed to obtain foreign currency from the Central Bank for the importation of the steel. In conclusion, he argued that by virtue of the supervening impossibility, the plaintiff was not entitled to specific performance as to order such would work an undue hardship on the defendant and would produce an injustice.

While agreeing, in the main, with the submissions made by counsel, it appears to me that in a claim for specific performance, the court may not prudently exercise its discretion after hearing only one party to the dispute. This is so because specific performance is a remedy in the discretion of the court and is founded in equity. That discretion has to be judicially exercised upon a consideration of all relevant facts. The discretion that the court enjoys in this regard is not confined to specific cases or is it circumscribed by rigid rules. It appears to me that a plaintiff claiming specific performance bears no onus to show that the grant of the order will not work an undue hardship on the defendant. A plaintiff, in our law, has the right to elect to hold a defaulting defendant to the contract and once having made that election, bears no further burden to prove that their election is equitable in the circumstances of the matter. Thus, if I am correct that the plaintiff bears no burden to prove that specific performance is equitable in the circumstances of their matter, there is no basis upon which a court, acting reasonably, can, at the close of the plaintiff's case, hold that the plaintiff has not adduced sufficient evidence to show that an order of specific performance should be granted in his or her favour.

It further yet appears to me that since specific performance can only be granted after a finding of breach of a material term of the contract, where such breach is still in issue, it is not prudent or even proper for the court to jump to resolve the dispute between the parties on the basis of the unavailability of specific performance without first determining the issue of the alleged breach.

At the close of the plaintiff's case, and in view of the contents of the plea, I felt that the issue of the alleged breach of contract was still alive and that there was need for me to hear the defendant's version of events to enable me to determine whether or not the defendant had breached the sale agreement as alleged.

It is on the basis of the above that I dismissed the application for absolution from the instance when it was made. I was also guided by the sound advice given by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd 1971 (1) RLR 1 (A), that, when in doubt, a court must always lean towards the matter proceeding.

The defendant opened its case by calling one Martin Mahlamvana (“Mahlamvana”). He is a Sales Clerk with the defendant and has been in the employment of the defendant for a commendable thirty years. He was the first contact that the plaintiff made with the defendant.

His evidence was also to large extent a narration of the events that are common cause in this suit as to how the plaintiff was given a quotation for the steel he required and how payment was made some days later. Regarding whether or not the Y12 and ANN wire were in stock at the time the plaintiff sought the quotation and subsequently made his payment, the witness was adamant that the plaintiff was advised by Mr Mano, the Harare Branch Manager that these two were not in stock. He denied that he had personally assured the plaintiff that such were in stock. He further testified that, in his presence, the plaintiff was told at the time he made payment that these two types of steel were not in stock but that an order for them had been placed by the defendant's head office in Bulawayo. It was his evidence that the plaintiff was advised that the defendant was waiting for the local supplier to supply the steel. The plaintiff agreed to wait.

Finally, the witness testified that, currently, the defendant is not selling any steel products as these remain unavailable from the local supplier.

The witness gave his evidence in a measured manner. So measured was he in his manner of speech that at times he appeared slow. He would not exaggerate and would defer questions to his superior where these fell out of the ambit of his duties. He was not shaken under cross–examination. I gained a favourable impression of him as a truthful and reliable witness.

Mr Boyina Mano, the defendant's Harare Branch office manager, also gave evidence. He has been in the employment of the defendant for the past twenty-eight years.

His testimony was similar to that of Martin Mahlamvana. He testified that he personally advised the plaintiff that Y12 and ANN wire were not in stock and the plaintiff assured him and Martin Mahlamvana that he would wait until the two items were in stock.

The witness was shown an order that the defendant had placed with ZISCO Steel for steel lengths, including the Y12 and ANN wire in dispute in this suit. He identified the order, dated 18 June 2007 which was then adduced into evidence by consent. He also identified a schedule that was prepared by the defendant showing that no Y12 and ANN wire were delivered from ZISCO Steel on the order in June 2007. The witness further confirmed that application was made to the defendant's Bank for the allocation of foreign currency to import the steel from South Africa. Had this happened, the cost price of the steel, as given on the quote, would have been affected and this is why the defendant had indicated on the quote that prices were subject to change.

Finally, the witness testified that the supply of steel had not improved since 2007 due to viability problems at ZISCO Steel, the main supplier. Currently, the defendant does not have the Y12 and ANN wire in stock and will only get these once the supplier starts rolling out the products.

The witness gave his evidence well. He was refreshingly clear and was easy to follow in his answers to questions put to him in cross-examination. I gained the impression that he was telling the truth when he testified that he informed the plaintiff that Y12 and ANN wire were not in stock when the plaintiff made his payment. He was, at that time, confident that since the defendant had placed an order for the steel, such would be delivered, and, in my view, he would have spread this confidence to the plaintiff. At that stage, there was no reason to doubt that delivery would be effected, and, in my view, it is highly improbable that the witness would have hidden that fact from the plaintiff.

After the testimony of this witness, the defendant closed its case.

On the basis of the above evidence, it appears to me that three issues arise;

(i) Firstly, I have to determine what the terms of the agreement between the parties were.

(ii) Secondly, and only after I have ascertained the terms of the agreement, I have to determine whether the defendant breached a material term of such agreement entitling the plaintiff to seek specific performance.

(iii) Finally, if I find that the agreement has been breached materially, I will have to determine whether specific performance is appropriate in the circumstances of this matter.

I return to the first issue.

It is common cause that the parties intended to conclude a sale agreement. The plaintiff inquired as to the prices at which the defendant would sell and deliver to him certain specified steel. The defendant gave the plaintiff the price list at which it could conclude the sale. This is not in dispute.

At the time that the plaintiff made the inquiry, and eventually made payment, it is my finding that he was aware that the Y12 and ANN wire were not in stock. In the circumstances, the issue that has exercised my mind is whether or not the parties concluded an unconditional sale agreement of all the steel products ordered - including the products that were not available. The plaintiff contends that they did and relies on the quotation and the payment of the amount quoted as proof of the unconditional sale.

While the point was not forcefully advanced on behalf of the defendant, I am of the view that the totality of the transactions between the parties did not amount to more than a conditional sale. It appears to me that by giving the quotation and accepting payment of the total amount on the quotation, after advising the plaintiff that it did not have the Y12 and ANN wire in stock, the defendant was not going beyond saying:

“I will sell you the Y12 and ANN wire at these prices when I get delivery from my supplier. In the meantime, I am accepting your money so that I will make delivery to you as soon as I receive the steel.”

When the defendant failed to receive the Y12 and ANN wire from its suppliers, it, in turn, could not supply same to the plaintiff. Its failure, however, to deliver these steel products to the plaintiff would, in the circumstances, not constitute a breach of the agreement between the parties. The condition precedent to the agreement had not been fulfilled and so the obligation to deliver did not arise.

I would have come to a different conclusion had the plaintiff been unaware that the two products were not in stock at the time he made payment. Then, I would have found that by accepting payment for the product, the defendant gave out to the plaintiff that it would deliver the product to him and is therefore bound to do so on the basis of the quasi mutual assent doctrine.

This is the view that the plaintiff urged me to take in the matter.

I cannot, as I found against him that he was aware that the two products were not in stock and had to be procured from the supplier before they could be delivered to him. He was prepared to wait, and did wait, for the products to become available. He only sought legal advice not because the products had delayed in coming but because the defendant wished to refund the purchase price for the products that had been sold subject to the condition as the condition could now no longer be met.

In my view, the plaintiff has taken too simplistic a view of the matter. He argued that the quotation given him by the defendant was the offer and his payment of the amount on the quotation was the acceptance of the offer, birthing a contract between the parties.

While, to some extent, this is correct, in my view, the entire contract is underlined by the fact that both parties knew that part of the products in the “offer and acceptance” were not in stock. They thus could not have agreed upon the sale of such items without qualification. The sale of such items could only have been conditional upon the availability of such since the defendant was merely a retailer and not the manufacturer of the products.

I am inferring the condition precedent to the agreement of sale by applying the well known “officious bystander” test. In my view, from the knowledge that both parties had as to the unavailability of the two items, had the officious bystander enquired of the parties why they were including the two items in the order, he would have received a prompt response that the sale was subject to the two items being delivered to the defendant by its supplier. None of the parties would have responded, at that stage, that the sale was unconditional and that the defendant had to procure the two items at its own cost, from wherever, for the benefit of the plaintiff.

In conclusion, it is therefore my finding that the parties entered into a conditional sale agreement. The condition precedent was not fulfilled and the defendant is not in breach. The plaintiff is not entitled to any remedy in the circumstances.

As indicated above, counsel for the defendant did not advance the fact that the sale agreement between the parties was conditional with much conviction. He, on the other hand, submitted that the remedy sought by the plaintiff in this suit was untenable and that I should use my discretion to refuse specific performance. Assuming, therefore, that I have erred in finding above that the sale between the parties in respect of the Y12 and ANN wire was conditional, I turn to examine whether the plaintiff would have been entitled to the order that he seeks.

It is the settled position at law that generally while a plaintiff who elects to hold the defaulting defendant to the contract is entitled to an order for specific performance, where the defendant is in a position to perform, the court has a discretion to refuse to grant the order on several grounds. In particular, the court will decline to grant the order where, at the time of the order, performance would be impossible or will work an undue hardship on the defendant. See Haynes v Kingswilliamtown Municipality 1951 (2) SA 371 (A)…,.

In casu, it is not in dispute that the defendant does not have in its stock the two steel products. It has not been proved before me that the steel products are readily available on the market. The plaintiff was uncharacteristically cagey when it came to testifying about the Y12 that he purchased elsewhere on the instructions of his engineers. He was not forthcoming with the name of the supplier and the cost of the item. He was of the view that this evidence was not material for the resolution of this dispute. He may have erred in this regard, for, in the circumstances, the evidence of the defendant that the two products are unavailable from the only and regular supplier remains uncontroverted.

I would distinguish the facts of this matter form those that my brother PATEL had to deal with in Interfresh Limited v Megapak Zimbabwe (Private) Limited HH90-09. In that matter, the defendant agreed to deliver a number of containers and their caps to the plaintiff at a concessionary price as it had been availed funds for the purpose under the Basic Commodity Supply Side Intervention Facility (BACOSSI) set up by the Reserve Bank. The defendant allowed the facility to end without supplying all the containers that it had undertaken to deliver under the facility. In holding the defendant to the contract, PATEL J reasoned that the only inference he could draw from the facts of the matter was that the defendant failed to deliver because it failed to exercise due commercial diligence by allowing the facility to run out before it had made good on all the promises it had made on the basis of the facility.

In casu, I have accepted that the defendant did not have the items in stock and were awaiting delivery on an order that had been made prior to its agreement with the plaintiff. In the circumstances, there was little that it could do to secure the product and was thus not guilty of commercial incompetence as was found in Interfresh Limited v Megapak Zimbabwe (Private) Limited HH90-09.

I have been referred to Zimbabwe Express Services (Private) Limited v Nuanetsi Ranch (Private) Limited SC21-09. In that case, the Supreme Court declined to order specific performance of a contract whose contract price had been determined in 2003 and had been eroded into nothing by inflation at the time specific performance was sought. In declining to order specific performance, the court was of the view that were it to grant specific performance, the appellant in that matter would take delivery of 280 heifers for a very small amount of money. In other words, the court reasoned, the appellant would take possession of a herd of cattle worth a considerable sum of money for which it would have paid virtually nothing.

It was pressed on me that were I to order specific performance in this matter, the plaintiff would take delivery of steel products worth a lot of money in foreign currency and for which he paid very little in local currency.

I do not agree that this is solely the basis upon which specific performance may be declined or that this was the simplistic manner in which the Supreme Court arrived at its decision in Zimbabwe Express Services (Private) Limited v Nuanetsi Ranch (Private) Limited SC21-09.

In my view, the law on specific performance has always been clear that where to order specific performance will result in an injustice, or where it is impossible, the court should not make such an order as this will act as an antithesis of what the law stands for.

In casu, it has been argued, and not challenged before me, that the defendant does not have the outstanding steel products in its stock. It has also been argued and not challenged that its supplier has not been able to supply it with the products. I have been told, in evidence, that the defendant has not been able to source the product from South Africa as it did not receive the necessary foreign currency allocation it required for the purpose. In the circumstances, to order the defendant to deliver the steel to the plaintiff will clearly, in my view, work an undue hardship on the defendant. On the evidence before me, it will be nigh impossible for the defendant to supply the steel from local suppliers.

On the basis of the foregoing, even if I have erred in finding that the defendant is not in breach of the sale agreement between the parties, I still would have declined to grant an order of specific performance in favour of the plaintiff as prayed.

In the result, I make the following order:

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the defendant's costs of suit.

HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

The plaintiff in this case claims the delivery of 1,200 bags of PC15 cement or, in the alternative, damages for breach of contract equivalent to the current market value of the cement, being US$11,400=, and costs of suit. The defendant resists the claim on several grounds, to wit, that delivery of the cement was conditional on the ...

The defendant resists the claim on several grounds, to wit, that delivery of the cement was conditional on the defendant receiving the same from its supplier, that it was unable to deliver due to supervening impossibility and that it is no longer able to deliver the cement and has offered a refund to the plaintiff in the sum of ZW$336 million.

Evidence for the Plaintiff

Elliot Mutangadura, the plaintiff, testified as follows. In July 2007 he approached the defendant to purchase various building materials. The defendant then submitted a quotation on the 18^th of July 2007 listing those materials that it was able to supply - including the cement in question [Exhibit 1]. At that time, PC15 cement was available on the market and also in the defendant's warehouse (though he was not aware of the quantity thereof). This was confirmed by the defendant's Branch Manager (Mavengere) as well as its Sales Manager (Jongwe) without any condition as to having to await delivery from the defendant's suppliers.

The plaintiff then paid the full purchase price for all the materials in six instalments amounting to $3.51 billion, as was confirmed in a letter from Jongwe dated the 30^th of August 2007 [Exhibit 2]. In that letter, Jongwe also confirmed that “we had promised delivery early August.” The defendant thereafter delivered all the purchased items - save for the cement.

On the 19^th of September 2007, Mavengere wrote a letter stating that the defendant was “unable to supply PC15 cement as per agreement” and offered to supply masonry or other building materials equivalent to the amount paid [Exhibit 3]. The plaintiff rejected the offer as the PC15 cement was specifically required for the building work in question.

On the 21^st of September 2007 the plaintiff's lawyers wrote a letter of demand to the defendant [Exhibit 5]. In response, on the 1^st of October, the defendant's lawyers offered a refund of the original purchase price of $336 million [Exhibit 4]. The plaintiff rejected this offer through a letter from his lawyers on the 9^th of October [Exhibit 6] because the money tendered was insufficient to pay for 1,200 bags of cement at that time.

Subsequently, from October 2007 to June 2008, the plaintiff sourced 1,200 bags of cement, on loan, from his uncle's hardware business. The return of the cement borrowed is now overdue. The requisite PC15 cement is currently available on the market at US$9.50 to US$10 per bag.

Evidence for the Defendant

Thomas Jongwe was the Sales Manager of the defendant's Harare branch at the relevant time. His evidence was as follows.

Before giving the original quotation to the plaintiff, on the 18^th of July 2007, he made enquiries with the defendant's suppliers and told the plaintiff that PC15 cement was available for supply to the plaintiff. However, before the first payment was received, on the 20^th of July, he verbally informed the plaintiff that the cement was not immediately available and would be sourced from Unichem, a supplier in Bulawayo. He then placed an order for 1,200 bags with Unichem on the 31^st of July [Exhibit 7]. Unichem did not have any clinker, a critical raw material in cement, and he verbally informed the plaintiff of that fact.

The plaintiff made six payments in all, from the 20^th of July to the 16^th of August 2007, as shown on the receipts therefor [Exhibit 8]. There was no indication on the receipts as to the specific items paid for. The payments were made towards the total quotation amount, with appropriation in respect of each item being made at the time of invoicing. No invoice was raised for the cement as it was not in stock to deliver. In accordance with the defendant's internal accounting system, an invoice is raised after payment is received and is given to the customer at the delivery point as a delivery note.

Under cross-examination, Thomas Jongwe accepted that by the date of the last payment, on the 16^th of August 2007, the plaintiff had discharged his obligation under the contract. He also conceded that he made enquiries with the defendant's suppliers and made certain that the cement was available before issuing the quotation to the plaintiff. He further confirmed that PC15 cement is presently available on the market.

Issues for Determination

The agreed issues for determination herein are as follows:

(a) What terms and conditions were agreed to or can be implied from the contract concluded between the parties?

(b) Whether the defendant is liable for specific performance in terms of the contract.

Terms and Conditions of Contract

The evidence before the Court shows that after the plaintiff initially approached the defendant, its Sales Manager, Thomas Jongwe, made enquiries with the defendant's suppliers and received positive confirmation as to the availability of PC15 cement. Jongwe then made out the quotation [Exhibit 1] and upon handing it to the plaintiff on the 18^th of July 2007 gave a firm assurance that the cement would be delivered in early August.

At that time, the defendant did not, as it contends, stipulate any condition as to the fulfilment of the contract being subject to delivery from its suppliers. Thereafter, the plaintiff paid the full amount of the quotation in six instalments, beginning on the 20^th of July and finishing on the 16^th of August 2007. The defendant only raised the non-availability of PC15 cement from its suppliers over one month after full payment had been made and received.

All the payments made by the plaintiff were towards the total quotation and not towards any specific materials thereon. The defendant's invoicing process involved the appropriation of the amounts paid to particular items as and when delivery was effected and the invoices served as delivery notes. However, this was quite clearly a process that was internal to the defendant's accounting system and totally irrelevant to the conclusion of the contract between the parties.

It is quite clear from the foregoing that the contract in casu was concluded unconditionally on the 20^th of July 2007 when the defendant accepted the plaintiff's first instalment as part payment towards the entire quotation - including the PC15 cement. The terms and conditions of the contract were that the defendant would deliver the cement in early August against payment by the plaintiff of the full amount of the quotation in instalments. In effect, the parties concluded an unconditional and binding contract for the supply of 1,200 bags of cement to the plaintiff in early August 2007.

Specific Performance and Supervening Impossibility

The defendant avers that at the end of August 2007 it was unable to source PC15 cement from its suppliers because a requisite component (clinker) was not available at that time. It therefore contends that this market factor constituted a supervening event rendering impossible the performance of the contract for the supply of PC15 cement.

It is trite that a party to a binding agreement has the right to demand from the other party, as far as it is possible, performance of his undertaking in terms of the contract where he is in a position to do so. Such specific performance can only be avoided in compelling circumstances. In this respect, the onus lies on the party seeking to avoid the contract to establish the facts and circumstances justifying the court's exercise of its discretion to refuse specific performance. See International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H)…,.

The general rule in our law is that, if a supervening physical or legal factor renders the performance of a contract impossible, through no fault of the debtor, the obligations of the parties under the contract are thereby extinguished and cannot be enforced. See Beitbridge-Bulawayo Railways (Pvt) Ltd v Commercial Union Insurance Company of Zimbabwe Ltd SC91-07.

However, this general rule does not override the terms of the implications of the contract. The court must have regard to, inter alia, the nature and circumstances of the contract and the nature of the impossibility that is relied upon. If, for instance, it is ascertained that the parties contemplated the situation that gives rise to the impossibility and accepted the risk of the supervening event, the general rule does not apply and the parties are bound to perform their contract. See Beitbridge-Bulawayo Railways (Pvt) Ltd v Commercial Union Insurance Company of Zimbabwe Ltd SC91-07; Bekker N.O. v Duvenhage 1977 (3) SA 884 (ECD)…,.; Bischofberger v Van Eyk 1981 (2) SA 607 (WLD)…,.; CHRISTIE: The Law of Contract in South Africa (3^rd ed.)…,.

There is a further situation more pertinent to the facts in casu where the general rule does not override the obligation of the parties to perform their contract. This arises where a party is only temporarily disabled from fulfilling his contractual obligations, in contradistinction to the position where the contract becomes finally and completely impossible of performance. See Field N.O. & Another v Compuserve (Pvt) Ltd 1990 (2) ZLR 253 (HC)…, citing Beretta v Rhodesia Railways Ltd 1947 (2) SA 1075 (R)…., as follows:

“The law is clear that when a contract becomes finally and completely impossible of performance by reason of an act of State it is discharged. Peters Flamman & Co v Kokstad Municipality 1919 AD 427. But this does not cover the situation in which one party is temporarily disabled from fulfilling his obligation.

It is nowhere suggested that the immediate effect of such temporary disability is to end the contract, and this is not surprising, for any such suggestion would involve consequences so extreme as to be unthinkable.”

On the evidence before the Court, there is nothing to indicate that the non-availability of clinker on the market was permanent and irreversible. According to Thomas Jongwe's testimony, this non-availability only occurred towards the end of August 2007 when the defendant's suppliers intimated their inability to supply PC15 cement. This would mean that the defendant was merely temporarily unable to source the 1,200 bags of cement and deliver the same to the plaintiff. Certainly, there was no evidence adduced to contradict the plaintiff's testimony that PC15 cement was available on the market from October 2007 onwards. In any event, the shortage of clinker on the market occurred one month after the promised date of delivery, and, therefore, it could not and should not have affected the defendant's undertaking to deliver the cement to the plaintiff in early August 2007.

It follows that the defendant's defence of supervening impossibility cannot be sustained, either at the time when delivery of the cement was to be effected as contemplated by the parties, i.e. in early August 2007, or at any time from October 2007 onwards, when cement was available on the market. It also follows that the defendant has failed to establish any basis for declining specific performance and must therefore be held bound to its undertaking to deliver PC15 cement to the plaintiff.

Quantum of Damages

Assuming that I am wrong in finding that the plaintiff is entitled to claim specific performance on the facts in casu, it is necessary to consider the measure of damages properly due to the plaintiff.

In this regard, the defendant submits that the plaintiff should have accepted the refund that was tendered by the defendant in October 2007. By refusing to accept that refund, so it is argued, the plaintiff has failed to mitigate his damages and must therefore bear the penalty of a commensurate reduction in the quantum of damages to be awarded.

In my view, these submissions are devoid of merit for several reasons.

It cannot be disputed that the plaintiff's entitlement to damages must entail him being placed in the position he would have been in but for the defendant's breach of contract. The plaintiff's unchallenged evidence was that in order to complete his building project he borrowed the requisite cement and presently remains obligated to replace the borrowed cement. More particularly, he rejected the defendant's offer to refund the purchase price originally paid specifically because the amount tendered would not have placed him in the position he was in at the time that the contract was concluded due to the hyper-inflationary economic environment that prevailed at that time. No evidence was adduced on behalf of the defendant to counter the plaintiff's testimony in the above respects.

I accordingly find that the plaintiff did endeavour to mitigate his loss and that his rejection of the refund offered by the defendant was perfectly justifiable at the material time. Moreover, it is common cause that the plaintiff duly performed his contractual obligations and that the defendant has remained in possession and beneficial use of the money paid by the plaintiff for the cement. It also not disputed that the current minimum price for cement is US$9.50 per bag.

In the final analysis, the law requires that the plaintiff be put in a position to purchase the cement that he requires at the current minimum market price in order to meet his obligation to replace the cement that he has borrowed. He is therefore entitled to the measure of damages that he claims in the alternative.

Disposition

Although the plaintiff's claim for damages was originally framed as an alternative in the event of the claim for specific performance being refused, I believe that it would be just and equitable, at this juncture, having regard to the facts of this case and the circumstances of both parties, to grant both an order for specific performance and damages as alternative remedies.

In the result, judgement is hereby entered in favour of the plaintiff as against the defendant for:

(i) The delivery of 1,200 bags of PC15 cement within 7 days of the granting of this order, or, alternatively, the payment of damages for breach of contract in the sum of US$11,400= being the current market value of 1,200 bags of PC15 cement; and

(ii) Costs of suit.

HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

THE BACKGROUND The facts of this case are largely common cause and can be summarised as follows: - Having been furnished with a quotation dated 31 May 2006, for the manufacture and supply of tanks, from the defendant, the plaintiff formerly placed an order with the defendant for the supply of the same. The plaintiff paid ...

HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

Under cross examination, Godwin Dingwiza was taken to task over three issues. The first was that the piece of paper that Collin Chakupa wrote was not a quotation; the second was that he paid a cheque in excess of the amount indicated on the piece of paper because he was aware that the cost ...

SC28-13 : JENA MINES (PVT) LTD vs AMTEC (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

The appellant issued summons in the High Court against the respondent in July 2004. It was alleged in the declaration as follows: “3. In April 2004, the plaintiff purchased a motor vehicle T3500 truck from the defendant for $133 million. 4. In terms of the defendant's quotation for the truck, delivery of the motor vehicle was to be ...

The appellant issued summons in the High Court against the respondent in July 2004. It was alleged in the declaration as follows:

“3. In April 2004, the plaintiff purchased a motor vehicle T3500 truck from the defendant for $133 million.

4. In terms of the defendant's quotation for the truck, delivery of the motor vehicle was to be done within one week of payment of the purchase price.

5. The plaintiff duly paid the full purchase price on the 22^nd of April 2004, but, despite demand, defendant has failed or neglected to deliver the truck.

6. As a result of the defendant's failure to deliver the truck by the 28^th of April 2004, in terms of their quotation, plaintiff had no option but to hire alternative transportation at a total cost of $58,260,300= as at 30 June 2004.”

The respondent denied liability.

It alleged that a pro forma invoice for the purchase of a Mazda T35 truck was given to the appellant on 23 February 2004 but the appellant only placed an official order on 20 April 2004. It was indicated on the pro forma invoice that “PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE.” While it was stated, in the pro forma, that delivery would be effected within a week; that was meant to be one week from the date of placement of the official order and the conclusion of a binding contract for the purchase assuming the appellant was going to place an order, and make payment, immediately. At the time of issue of the pro forma invoice no agreement had been concluded by the parties. By the time the appellant placed an order it had already been appraised of the difficulties and delay then obtaining in procuring the T35 truck. The respondent contended that it was under no legal obligation to deliver the truck within one week of 22 April 2004, the date when the purchase price was paid by the appellant.

Regarding the claim for damages, it was pleaded by the respondent that if the losses claimed by the appellant were indeed suffered by it they could have been avoided had the appellant accepted the respondent's reasonable offer of a similar model of truck or a refund of the purchase price with which the appellant could have obtained a similar truck from other car dealers.

The issues for determination at the trial were whether there was a valid agreement between the appellant and the respondent; whether the respondent was obliged to deliver the T35 vehicle; and the quantum of damages, if any, payable to the appellant.

The High Court found that while there was an agreement concluded between the parties, it was not the agreement which was envisaged on 23 February 2004 when the pro forma invoice was issued.

It found, and that was common cause at the trial, that the pro forma invoice was given to the appellant on the understanding that the appellant would immediately forward a purchase order and payment for the truck. At that time, a truck was available and the respondent was ready to deliver within seven days. It was never in the contemplation of the parties that the appellant would take eight weeks to forward the purchase order and payment in terms of the pro forma invoice. Accordingly, by the time the appellant was ready to make payment, the respondent had no vehicles in stock. This change of circumstances, regarding the availability of the T35 trucks, was communicated to the appellant before it placed the purchase order and made payment for the vehicle. The learned Judge found that a date of delivery had not been specified in the agreement which was finally concluded by the parties. Accordingly, delivery was to be made within a reasonable time.

The learned Judge's finding in this regard accords with the evidence.

The delivery period stated in the purchase order, issued by the appellant on 29 March 2004, is fifteen days (29 March to 13 April). The appellant was clearly not relying on the seven day delivery period at the time it issued the purchase order. Indeed, on the evidence adduced by the appellant, it is difficult to understand what delivery period was, in fact, being relied upon by it because the 13^th April came and went with no payment being made by the appellant. Only on 22 April 2004 did the appellant make payment for the vehicle. It was on that date that a contract for the purchase of the T35 was concluded by the parties. Since no delivery period was specified, (the payment having been made nine days after the delivery date stated in the purchase order) delivery was to take place within a reasonable period.

In view of the above, the appellant could not possibly rely, as it did in the summons, on the seven day period stated in the pro forma invoice.

View Appeal
HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MTSHIYA J

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-

“(a) Payment of the sum of US$750,000.

(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.

(c) Costs of suit.”

The background to the relief sought can briefly be narrated as follows:-

The plaintiff is a manufacturer and supplier of exclusive range of cables for the transmission and distribution of energy and communications involving entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel-One.

The plaintiff's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In October 2004, the plaintiff approached the defendant for assistance. The defendant was then operating a foreign currency auction system. Through that system, the defendant made available, each week, from 25% of export proceeds, an amount of foreign currency for which commercial banks would submit bids for their customers. On the basis of those bids, allocations would then be made to the highest bidder(s).

In line with the auction system, on 24 October 2004, the defendant, through its Governor, informed the plaintiff, that, if it (plaintiff) submitted bids to the auction, the defendant would ensure that it (plaintiff) succeeded to the extent of US$150,000 per week to enable it to pay for essential inputs in its operations.

That process was indeed put into place on a weekly basis as from 14 January 2005 up to June 2005.

This was a special arrangement where the plaintiff would, instead of placing a bid, it would merely be advised, through a telephone call, each week, from the defendant's officials, that, the said allocation of US$150,000 was ready. All the plaintiff was required to do, in turn, was to pay the Zimbabwe dollar equivalent within 24 hours. The plaintiff would then, in turn, transfer, through a Commercial Bank, the requisite Zimbabwean dollar amount and details of the foreign suppliers to be paid in foreign currency (i.e from the US$150,000 allocated to the plaintiff).

The allocation of US$150,000, was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the plaintiff until the end of July 2005.

The allocation system was continued in August 2005 resulting in the plaintiff making three transfers of undisputed payments in Zimbabwe dollars for the equivalent of the amount of US$750,000 - now being claimed by the plaintiff.

The payments were, in each case, accompanied by details of external creditors to be paid by the defendant.

Notwithstanding the payment of the equivalent amount in Zimbabwe dollars by the plaintiff, the defendant has, to date, not forwarded the foreign currency to the plaintiff's external creditors or refunded the plaintiff with the said amount of US$750,000. In fact, the plaintiff has already, through other sources, paid its suppliers.

The above, in brief, explains why the plaintiff has resorted to this court action claiming the said amount of US$750,000.

With both the plaintiff and the defendant having amended their pleadings at the pretrial conference, it was agreed that the issues for trial were:-

“(a) Whether defendant is contractually obliged to pay plaintiff the sum of US$750,000;

(b) Whether defendant is estopped from denying its obligation to pay plaintiff the sum of US$750,000;

(c) Whether defendant's tender to repay the sums of Zimbabwean currency paid to it by plaintiff is a proper tender which plaintiff is obliged to accept.”

At the commencement of the trial, I indicated to both parties that, given the fact that both parties were generally agreed on what transpired, my view was that the matter could be determined through merely hearing arguments from both sides.

The plaintiff was, however, opposed to that approach and preferred to lead evidence. The defendant then also adopted the same stance.

I therefore had no option but to allow the parties to lead viva voce evidence.

The plaintiff's only witness, Mr E.W. Turina (Turina) said he was the Chief Executive Officer of the plaintiff at the time of the purchase of US$750,000 from the defendant. He had, however, left the employ of the plaintiff in June 2006.

Mr Turina's evidence was, in the main, a confirmation of what was already contained in the pleadings.

He said due to the scarcity of foreign currency, the plaintiff had reached an agreement with the defendant whereby bids from the plaintiff would be given preferential treatment.

He confirmed, that, the information on the allocations was done telephonically and that once an allocation (ie the initial US$150,000 rising to $250,000) was made, the plaintiff was required to pay the equivalent in Zimbabwe dollars within twenty-four hours (24) hours.

The arrangement had worked well from January 2005 until August 2005 when the defendant failed/neglected to disburse US$750,000 to the plaintiff's customers/suppliers despite the fact that the plaintiff had paid the defendant the equivalent in Zimbabwe dollar as per the standing arrangement.

The Zimbabwe dollars had been paid in three transfers on 1, 11, and 19 August 2005. This was to cater for the increased weekly allocation of US$250,000.

He said when the first allocation was not released, after payment of the equivalent Zimbabwe dollars, the plaintiff had asked for an explanation but was promised that the money would be released.

The same had happened with respect to the two subsequent payments.

After failure by the defendant to forward payment to its suppliers, the plaintiff had then borrowed money from other sources so as to meet supplier requirements. This had led to the withdrawal of invoices from the defendant, which invoices were produced as exhibits 1, 2 and 3.

Mr. Turina confirmed, that, before he left the employ of the plaintiff, in 2006, negotiations for settlement were in progress and that the defendant had indicated that it would secure the US dollars at a later stage for the plaintiff or reimburse the plaintiff in Zimbabwe dollars.

He said some of the discussions were not directly conducted with him.

He had, however, later learnt, that, the defendant was not going to pay the US$750,000.

It was his view, that, once the plaintiff effected payment of the equivalent Zimbabwe dollar amount of the allocated foreign currency “the contract was completed.”

He said the company had opted to wait because the Zimbabwe dollar had become worthless.

Mr Turina stuck to his story under cross-examination.

The defendant also called only one witness, a Mr B. Musoso (Musoso).

The witness said he was employed by the defendant as its Head of Treasury Operations. He said the Treasury Division was responsible for settlement and payment of allocations. The auction system, he said, was run by a separate unit which was responsible for the allocations. The role of his department was to communicate with companies and advise them on foreign exchange rates.

He was aware of a list of special allotees who received payment on a weekly basis. These were companies considered key to the national economy. These included the plaintiff.

He said there were thirty-six (36) companies on the special list and the allocations were made by the auction unit. Some of these were Boc Gases, Quest Motors, Unilever, Olivine Industries, Dunlop, National Oil Company of Zimbabwe (NOCZIM) and the fertilizer companies.

Mr. Musoso said there were no formal contracts with the companies on the special list.

The role of his department was to effect payment when funds were made available.

The witness said his department dispatched foreign exchange quotations to various interested companies. The quotations were meant to enable companies to mobilize the necessary funds before allocations were made. He said payment to allotees depended on instructions from what he called “the front office” and the availability of foreign currency.

He said the non-availability of foreign currency explained why the three payments made by the plaintiff, in August, were not honoured.

Mr. Musoso said when the auction system ceased, in August 2005, there were many unpaid beneficiaries from the special list and the defendant decided to reimburse them in Zimbabwe dollars.

He said he had heard that the plaintiff wanted reimbursement in US dollars instead of the Zimbabwe dollar. It was his evidence, that, in reimbursing beneficiaries, the defendant did not take into account the devalued value of the Zimbabwe dollar because there was no financial obligation: “We were just returning whatever had been paid,” he said.

Under cross examination, Mr. Musoso maintained, that, the successful execution of the arrangement relied solely on the availability of foreign currency.

In addition to Mr. Musoso's evidence, the defendant also relied on responses by Dr G. Gono (Governor of the Reserve Bank of Zimbabwe) and Patience Aisam (Manager Compliance–Treasury Division) to the plaintiff's interrogatories filed on 29 September 2009.

Both responses to interrogatories were filed on 17 November 2009.

In his response, Dr Gono stated that he had, upon the specific request and representations from the plaintiff, advised that he would endeavour to source foreign currency for the plaintiff in the amounts mentioned (i.e initially US$150,000 rising to US$250,000).

He said this was in recognition of the strategic role played by the plaintiff in the national economy.

There was, however, no formal binding agreement.

He said he had indeed been advised that “the plaintiff had made payments totaling Z$13,535,110 being the quoted equivalent at the auction rate of US$750,000”, now being claimed by the plaintiff.

However, he said “due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency not only to the plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

It was his evidence that his officers had informed him, that, during August 2005, no disbursements were made to any applicant for foreign currency under the auction system.

In response to the plaintiff's interrogatories, Miss Patience Aisam confirmed, that, from “14 January 2005 to August 2005, she would, on a weekly basis, telephone or instruct that plaintiff be telephoned advising it that its application for foreign currency allocation had been approved.”

She also confirmed, that, the approved amounts were US$150,000 per week from 14 January 2005 to mid-June 2005. Thereafter, the amount was increased to US$250,000 per week….,.

Counsel for the plaintiff submitted that the plaintiff's case was clear and did not warrant argument.

He submitted, that, the undisputed evidence of Mr. Turina had confirmed, that, upon approaching the Governor of the Reserve Bank, Dr Gono, for assistance in obtaining foreign currency, the plaintiff had been granted the status of a permanently successful bidder at the weekly foreign currency auctions.

The plaintiff, with that status, did not need to place bids at the auction, but, was merely telephonically advised of the agreed weekly allocations.

The practice, it was submitted, had been successfully operational from January 2005 to July 2005.

Payment(s) requirements were availed to the plaintiff who complied at all times by effecting the payment(s) of the equivalent amount of the foreign currency in Zimbabwe dollars.

The only condition was that “foreign currency will only be released after receipt of Zimbabwean dollars.”

Counsel for the plaintiff submitted, that, after the foreign currency amounts were not paid, in August 2005, the Deputy Governor, Mr Ncube, of the defendant, offered the plaintiff the choice of having the money paid by the plaintiff refunded in local currency or waiting for the foreign currency to be made available. That evidence was not contradicted.

I agree.

Counsel for the plaintiff further submitted, that, in practice, there were two initial contractual arrangements:

(i) The first was the undertaking by the defendant that the plaintiff would be allocated foreign currency without the need to make bids at the auction system.

(ii) The second was that once the plaintiff effected payment of the Zimbabwean dollars within twenty-four hours (ie equivalent of the foreign currency) the foreign currency allocated would be made available.

The plaintiff had, in all three instances in August 2005, complied with the payment requirements.

Counsel for the plaintiff said the third contractual arrangement, novating the August contracts, occurred when the defendant promised to pay the plaintiff the foreign currency when it became available.

The plaintiff had, in turn, agreed to wait for payment until it became necessary to institute these proceedings.

In support of the need for the plaintiff to institute legal proceedings, counsel for the plaintiff quoted from Asharia v Patel 1991 (2) ZLR 276 where the relevant part of the judgment of the former Chief Justice reads as follows:

“The general applicable rule is that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon as thereafter as is reasonably possible in the circumstances.

But, the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform.

This form or mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default.

The demand or interpellatio, may be made either judicially by means of a summons or extra-judicially by means of a letter of demand or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance which is not unreasonable. If unreasonable, the demand is ineffective….,.”

The promise to refund was made in 2005 and summons was issued on 29 July 2008.

It was counsel for the plaintiff's submission, that, the evidence of the defendant's witness (Mr. Musoso) was irrelevant since he had no direct dealings with the auction system. He said the defendant had failed to call witnesses who could have given meaningful testimony as to what actually happened.

The only credible evidence available was that of Mr Turina, he argued.

Counsel for the plaintiff concluded by submitting as follows:

“1. That, it was the uncontradicted and unchallenged evidence on plaintiff that Deputy Governor Ncube gave an undertaking to pay plaintiff US$750,000 at a future unspecified date.

2. That, this undertaking was accepted by plaintiff and formed a binding contract.

3. That, the binding contract so formed created an obligation on defendant to perform within a reasonable time.

4. That, after the lapse of a time, that defendant has never claimed is unreasonable, plaintiff made interpellation by the issue of summons, calling for the enforcement of the contract.

5. That, in the alternative, the second contractual event is binding on the parties.

6. In any event, defendant so conducted itself between January2004 and July 2005 as to cause plaintiff to believe that it had a contractual relationship on an occasion by occasion basis; that plaintiff did so believe, and, as a result of defendant's actions and words, plaintiff altered its position to its detriment.

7. That, in enforcing specific performance of a contract, the court is to treat the State like any other individual.

8. That, in the circumstances, defendant has done nothing to prevent plaintiff from being granted a judgment in terms of the summons.”

Counsel for the defendant submitted, that, due to the scarcity of foreign currency, the plaintiff and thirty-six (36) other complainants were placed on a list of companies considered as strategic in the national economy.

Depending on availability, the defendant then agreed to allocate foreign currency to these companies – which included the plaintiff.

He said no formal contracts were drawn in respect of the arrangements.

He said the plaintiff had been offered a refund of the money it had paid upon failure by the respondent to source the requisite foreign currency.

Counsel for the defendant emphasized the point, that, the arrangement between the parties was always subject to the availability of foreign currency which the defendant could disburse.

Arguing that there was no contractual obligation, on the part of the defendant, to pay the plaintiff the amount claimed, counsel for the defendant said it was never the consensus of the parties that the payment of the Zimbabwe dollars sealed the contractual arrangements.

The payment, he said, was subject to the availability of foreign currency.

The defendant, he submitted, could not have guaranteed payment because it did not know how much foreign currency would be generated from the auction system.

Counsel for the defendant said the defendant's witness had confirmed that his department had not been allocated with foreign currency for disbursement.

In the main, counsel for the defendant submitted, “the plaintiff had been favoured with an allocation that it be given foreign currency of US$250,000 per week if the same was available. There was no intention to create contractual obligations.”

He said quotations sent to the plaintiff were not offers.

Counsel for the defendant further submitted, that, the plaintiff had failed to prove that foreign currency was available at the time the allocations were made.

He blamed the plaintiff for refusing to accept a refund in Zimbabwean dollars as had been done by the other companies.

In conclusion, counsel for the defendant had this to say:

“The issue of who was a better witness between plaintiff and defendant's witness is, with respect, of no great moment.

Material facts are common cause. The court should take a holistic approach in the matter and determine what the intentions of the parties were and what relationship was created.

It is submitted, that, it could not have been within the contemplation of the parties, that, a failure by the defendant to disburse foreign currency to the plaintiff due to non-availability would ground a cause of action for specific performance.

In all the circumstances, the plaintiff's claim should be dismissed with costs and it is noted it has refused the tender of the refund in Zimbabwe dollars.”

I fully agree with counsel for the defendant, that, in casu, the material facts are common cause and I made that observation at the commencement of the hearing of this matter.

My assessment is that, apart from merely confirming what is already contained in the pleadings, nothing much turns on the oral evidence from the witnesses called by both parties.

However, my view, on the one hand, is that the evidence of the defendant's witness was totally irrelevant because he was clearly a distant player in what took place in the actual allocation process.

On the other hand, I find that Mr. Turina's evidence buttressed the respondent's responses to the interrogatories.

The responses do not deny the practice that operated smoothly from January 2005 to July 2005. The only issue highlighted is that the arrangement was anchored on the availability of foreign currency.

That is undeniable, and, indeed, no allocation could have been made without the availability of foreign currency.

However, the main issue, in my view, is whether by allocating to the plaintiff US$150,000 and later US$250,000, from the auction system, the defendant then became obligated to release the money to the plaintiff upon payment by the plaintiff, within twenty four (24) hours, of the Zimbabwe dollar equivalent at the defendant's instruction.

In interrogating that issue, one has to consider the following undisputed facts:-

(a) Every week, Patience Aisam, of the defendant, would telephone the plaintiff to advise on what had been allocated to the plaintiff and what had to be transferred through a Commercial Bank in Zimbabwe dollars - in fact, it was confirmation of the sale to the plaintiff of the allocated amount, in this case US$250,000.

(b) Upon advise from Patience Aisam, the plaintiff would, within twenty four (24) hours, transfer the Zimbabwe dollar equivalent. Indeed, in response to the interrogations, the Governor of the Reserve Bank of Zimbabwe says:

“I am advised that during the month of August 2005, plaintiff made payment totaling Z$13,535,110 being the quoted equivalent, at the auction rate, of US$750,000 which the defendant had hoped to pay to the plaintiff. Due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency, not only to plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

This is supported by paragraph 4 of the defendant's plea which reads:

“The defendant admits that the sums of money, as set out in paragraph 2 of the plaintiff's further particulars, were deposited with the defendant. The amounts would have exchanged for US$750,000 once this money had been successfully sourced by the defendant. The foreign currency was not availed to the plaintiff because the defendant was unable to mobilize the same.”

It becomes crucial for the defendant to explain the reasons for Patience Aisam to set in motion the process, if foreign currency was unavailable.

My view is simply that the allocation was only made against funds that were already available from the auction.

Patience Aisam states:

“I confirm that during the period referred to, that is to say, from about the 14th January 2005 to August 2005 (the month of August included) I would, on a weekly basis, telephone or instruct that plaintiff be telephoned advising that its application for foreign currency had been approved.”

It is important to note that Patience Aisam spoke of an “approved allocation and not successful bid.” This was so because the plaintiff was on a special list that was not required to bid.

There could, in my view, be no approval or allocation of what was not already available.

Given the condition that the completion of each transaction was totally dependant upon the availability of foreign currency, the possibility of Patience Aisam confirming allocation and asking for payment of the Zimbabwe dollar equivalent, within 24 hours, when there was no foreign currency already earmarked for the plaintiff, is, in my view, very remote.

In addition to the above, it is important to determine at what stage a contract would be concluded between the parties.

The scenario in the operation was as follows:

(a) The Governor agreed to accord the plaintiff special treatment.

(b) The Governor allocated a specific amount to the plaintiff on a “permanent” basis.

(c) Patience Aisam would confirm the allocation and indicate the Zimbabwe dollar component to be paid within 24 hours; and

(d) The plaintiff would, within 24 hours, comply and then forward a list of its customers to the defendant for disbursement of funds.

The above scenario clearly fits into counsel for the plaintiff's submission, that, there were initially two contractual events (ie the Governor's undertaking and then the actual allocation accompanied by compliance on the part of the plaintiff).

I am therefore unable to accept that the above scenario did not create binding obligations on the part of the defendant.

To that end, I am of the view, that, upon compliance by the plaintiff, a binding contract was concluded and what remained was the release of the foreign currency purchased by the plaintiff.

The case of F.C. Hume (Pvt) Ltd v Minister of Natural Resources & Tourism 1989 (3) ZLR 55 indeed supports this view.

With the plaintiff having complied with all the requirements, the contract was already in place and the defendant was obliged to meet its obligation.

The existence of the contract is further strengthened by the fact, that, the defendant admits, that, in August 2005, the plaintiff bought from it US$750,000 for a sum of Z$13,535,110.

However, what the defendant is now saying is simply this:-

“Yes, you bought US$750,000 but give us time to mobilise it. We seem to have sold you what we did not have at the time.”

The defendant then places before the plaintiff two choices, namely, reimbursement in the actual amount paid in Zimbabwe dollars or waiting until it mobilizes the amount of foreign currency already purchased by the plaintiff.

That, in my view, is not to deny contractual obligation.

The plaintiff elected to wait until litigation became the only option.

The plaintiff's election is based on the basis that devaluation has rendered the Zimbabwe dollar worthless.

The defendant's witness confirmed, that, the refund was to be the actual Zimbabwe dollar paid without taking into account the issue of inflation and devaluation.

It would, in the circumstances, be unreasonable to fault the plaintiff's election to await payment of what it actually purchased.

The promise made by the Deputy Governor of the defendant was not disputed in evidence.

It was, in my view, not a novation of the earlier arrangements - but a confirmation of same.

In his submissions, counsel for the defendant merely stated:

“(vii) He believed that foreign currency was available for the simple reason that quotations for payment of Zimbabwe dollars were sent to plaintiff and the plaintiff paid on them.”

The above is in line with paragraph 5(b) of the plea which reads:-

“(c) The defendant denies that it has refused to compensate the plaintiff and avers that it has offered to refund the defendant what it paid as has been done with other companies who faced the same fate. The plaintiff has refused to be compensated in local currency and insisted on payment of US$750,000.

Wherefore, the plaintiff tendering to refund the defendant the amount it paid, with interest at the prescribed rate of 30% per annum, otherwise prays for the dismissal of the plaintiff's claim with costs.”

Having determined that the defendant was contractually obliged to pay the plaintiff the sum of US$750,000 which the plaintiff purchased, as agreed between the parties, it would be unreasonable to allow the defendant to dictate to the plaintiff the form of settlement the plaintiff should accept.

That being the case, the plaintiff's claim for specific performance is unassailable.

The defendant accepted the plaintiff's election for specific performance ie by giving the plaintiff two choices – whereby the plaintiff elected to await payment of the purchased foreign currency.

That position has not changed.

The fact that other companies accepted refunds in Zimbabwe dollars has no bearing on the agreement between the parties herein.

The defendant is estopped from abandoning its obligation.

In International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H) the late ROBINSON J, in dealing with the issue of specific performance, had this to say:-

“I would wind up by saying, that, if the right of specific performance is to be shown to have real meaning to businessmen; then, the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts, then, don't start crying if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract.

In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of the breach.

Businessmen at fault will therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain - no matter how costly that may turn out to be for them…,.”

I agree with the above.

Accordingly, the sanctity of contractual arrangements should continue to be protected by courts of law.

In view of the foregoing, I find in favour of the plaintiff and order as follows:-

1. The defendant be and is hereby ordered to pay the plaintiff the sum of US$750,000 together with interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment; and

2. The defendant be and is hereby ordered to pay costs of suit.

Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the High Court granting with costs a claim by the respondent for:

(i) Payment of the sum of US$750,000.

(ii) Interest tempore morae at the London Interbank rate for United States dollars, at 3.5% per annum, from 1 September 2005 to the date of payment.

(iii) Costs of suit.

The factual background to this dispute, which is largely common cause, may be summarised as follows:

The appellant is a financial institution. The respondent is a manufacturer and supplier of an exclusive range of cables for the transmission of communication and distribution of energy used by such entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel One.

The respondent's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In 2004, the respondent's business experienced slow growth due to inflation and the scarcity of foreign currency. During that year, the respondent's representatives met with the appellant's Governor, Dr. Gideon Gono, with a view of securing foreign currency to purchase imported inputs in order to sustain its business.

Dr Gono gave an oral undertaking to avail US$150.000 per week, to the respondent, from the foreign currency auction system.

In January 2005, the respondent began to receive the said sums of foreign currency against payment of a Zimbabwean dollar equivalent to the appellant via a commercial bank.

The special arrangement was extended to thirty-five (35) other companies selected as the recipients of foreign currency.

This allocation of US$150,000 was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the respondent until the end of July 2005.

In August 2005, the respondent made three transfers of money, in Zimbabwe dollars, to the appellant, for the equivalent of the amount of US$750,000. The payments were accompanied by details of external creditors to be paid by the defendant.

The appellant did not pay the foreign currency.

Its position, at the trial, was that foreign currency could not be paid because it was not available.

The respondent's witness, Mr. Turina, confirmed, in evidence, that, the appellant indicated that it did not have foreign currency for disbursement.

On 2, 11 and 19 August, respectively, the respondent made payments, in Zimbabwe dollars, equivalent to US$750,000.

In respect of these three payments, the respondent would receive a phone call from the appellant before making payment.

On 1 August, it received a call from the appellant before depositing a sum of Z$4,438,294,052=45 with the appellant the following day.

With regard to the second transaction, the respondent received a phone call on 5 August. In response thereto, it deposited the sum of Z$4,511,254,261=47 with the appellant on 11 August.

On the third occasion, the telephone call was made on 17 August. The respondent deposited an amount of Z$4,587,562,920=90 with the appellant on 19 August.

Bigboy Masoso, who was the Division Chief Treasury Officer testified on behalf of the appellant to the effect, that, the disbursement of foreign currency could only be made if the front office of the appellant made the funds available. He also stated that the telephone calls made to the respondent, and other companies, were meant to provide quotations to secure constance of the exchange rate.

In the affidavit filed of record, Dr Gono stated as follows at paragraph four thereof as follows:

“I advised them that the Bank would endeavour to source foreign currency for the plaintiff to the tune of USD$150,000 per week in recognition of the plaintiff company's strategic role in the national economy. No formal binding agreement was concluded in this regard and it was never the common understanding of the parties that we were concluding a formal agreement.”

At paragraph six of the affidavit, he stated as follows:

“As a result of further representations made by the plaintiff, the defendant increased the weekly allocation of foreign currency to the plaintiff to USD250,000 from or about the 8th June 2005. Again, it was never the common understanding and contemplation of the parties that they were entering into a formal binding transaction, hence no formal contractual documentation was executed.”

Again, at paragraph seven of his affidavit, he stated as follows:

“I am advised, that, during the month of August 2005, plaintiff made payments totalling Z$13,535,110 being the quoted equivalent at the auction rate of USD750,000 which the defendant had hoped to pay to the plaintiff. Due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency, not only to plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

Following a trial, the learned Judge found as follows at p8 of the judgment:

“However, the main issue, in my view, is whether, by allocating to the plaintiff US$150,000 and later US$250,000 from the auction system, the defendant then became obligated to release the money to the plaintiff upon payment by the plaintiff, within twenty-four hours, of the Zimbabwe dollar equivalent at the defendant's instruction.”

At p9 of the judgement, the court a quo stated as follows:

“It becomes crucial for the defendant to explain the reasons for Patience Aisam to set in motion the process, if foreign currency was unavailable. My view is simply that the allocation was only made against funds that were already available from the auction.

It is important to note that Patience Aisam spoke of 'an approved allocation and not successful bid.'

This was so because the plaintiff was on a special list that was not required to bid.

There could, in my view, be no approval or allocation of what was not already available.

Given the condition that the completion of each transaction was totally dependant upon the availability of foreign currency, the possibility of Aisam confirming allocation and asking for payment of the Zimbabwe dollar equivalent, within 24 hours, when there was no foreign currency already earmarked for the plaintiff is, in my view, very remote.”

The learned Judge, at p9, made the following finding:

“I am therefore unable to accept that the above scenario did not create binding obligations on the part of the defendant.

To that end, I am of the view, that, upon compliance by the plaintiff, a binding contract was concluded and what remained was the release of the foreign currency purchased by the plaintiff.

The case of F.C. Hume (Pvt) Ltd v Minister of Natural Resources & Tourism 1989 (3) ZLR 55 indeed supports this view.

With the plaintiff having complied with all the requirements, the contract was already in place and the defendant was obliged to meet its obligation.”

The gist of the court a quo's reasoning was that, at the time the phone calls were made to the respondent, the foreign currency to which the call related was available and the call was an offer which the respondent accepted by depositing the money, in Zimbabwean dollars, with the appellant thereby giving rise to a binding contract.

The court a quo gave judgment in favour of the respondent as sought in the summons. It is against this judgment that the appellant now appealed to this Court.

In the grounds of appeal, the appellant contends that:

1. The court a quo erred in law and fact in not making a finding that the payment by the respondent of the Zimbabwe dollars, as directed by the appellant, did not create a binding contract which was an end itself but that performance was always subject to foreign currency being available.

2. The court a quo erred in law and fact in making a finding that the communications made by Patience Aisam, on behalf of the appellant, calling upon the defendant to pay the Zimbabwe dollars, meant or was evidence that the foreign currency being allocated was available for disbursement to the respondent.

3. The court a quo erred in fact and law in not making a finding that non-availability of foreign currency made performance impossible and that the appellant was entitled to refund the respondent the money it had paid as the suspensive condition, viz, the availability of foreign currency had failed to be met.

4. The court erred in law in allowing the claim for interest and in ordering the interest to run from 1 September 2005.

The primary question to be decided by this Court is: whether or not there existed a binding contract for the disbursement of a sum of foreign currency to the respondent's creditors upon payment by the respondent of an equivalent sum in Zimbabwean currency.

The following are undisputed facts:

As a result of an approach to the appellant's Governor, Dr Gono, on 27 October 2004, for assistance in obtaining foreign currency, the respondent was granted the status of a successful bidder at the weekly foreign currency auction.

Several other companies were on this special list.

The respondent was not required to place bids at the auction but was merely telephonically advised of the agreed weekly allocations.

The practice had been successfully operational from January 2005 to July 2005.

Payment requirements were availed to the respondent who complied by effecting payment of the equivalent amount of the foreign currency in Zimbabwe dollars.

There was no formal contract between the appellant and the respondent.

The respondent was amongst a list of thirty five (35) companies on this special list who had been identified as preferential recipients of foreign currency under the arrangement.

The court a quo correctly found, that, the arrangement between the parties was premised on the availability of foreign currency. As such, no allocation could be made without the availability of foreign currency.

Indeed, both parties were aware that the arrangement for the disbursement of foreign currency was subject always to a condition that foreign currency had to be available in the first instance.

Mr Turina stated, that, due to the scarcity of foreign currency, the respondent had reached an agreement with the appellant whereby bids from the respondent would be given preferential treatment.

He confirmed that the information on the allocations was done telephonically and that once an allocation (i.e. the initial US$150,000 rising to US$250,000) was made, the respondent was required to pay the equivalent in Zimbabwean dollars.

The arrangement had worked well from January 2005 until July 2005.

In August 2005, the appellant failed to disburse US$750,000 to the respondent's customers and suppliers after the respondent had deposited with the appellant an equivalent sum, in Zimbabwe dollars, in three separate tranches.

In this regard, the import of the affidavit of Patience Aisam was that a telephone call would be made to advise of an approved application and not allocation. In effect, the approval and the actual allocation of foreign currency were distinct processes - premised on the availability of foreign currency.

It was the evidence of Patience Aisam's superior, Bigboy Masoso that payments in foreign currency would only occur if the front office availed such funds.

This testimony accords with logic and probability.

Patience Aisam was not employed in the Front Office which was responsible for the allocation of foreign currency.

The court a quo found that there existed a binding contract between the parties.

When regard is had to Dr Gono's affidavit, it is clear that he advised the respondent that the appellant would “endeavour” to source foreign currency for the respondent.

Such assertion does not suggest that the appellant was binding itself to provide the respondent with foreign currency on an ongoing or permanent basis.

It is not in dispute that no allocation of foreign currency was made in August 2005. According to Bigboy Masoso, the system was discontinued because there was no foreign currency.

The 24 hours notice of payment of Zimbabwe dollars was not in fact adhered to by the respondent in August 2005.

The finding by the court a quo, that, upon payment by the respondent, a binding contract was concluded, is not borne out by the evidence with regard to the payments made following telephone calls of 5 and 17 August 2005.

It is to be noted, that, there was no formal contract between the parties.

Dr Gono offered to prioritise the respondent, and other companies, in the allocation and disbursement of foreign currency.

The Court finds that when Dr Gono put in place the special arrangement, there was no intention to create a binding contract to avail foreign currency to the respondent and the other companies on the special list.

The facility was put in place, at the time, because of the acute shortage of foreign currency.

It is highly unlikely, that, given that state of affairs, Dr Gono would seek to bind the appellant to avail foreign currency to the respondent, upon payment of the local currency, when the volume of inflows of foreign currency were unpredictable.

In the circumstances, it would not be logical for Dr Gono to enter into a binding contract to supply foreign currency to the respondent on the terms suggested.

It is not without significance that 35 other companies on the special list subsequently accepted refunds of Zimbabwe dollars deposited with the appellant in August 2005.

This fact is consistent with the position that the allocation of foreign currency was conditional upon its availability at any given time.

The effect of the evidence is that the agreement for the disbursement of foreign currency was predicated upon availability of foreign currency.

It was the respondent's testimony, that, the condition that foreign currency would be availed to the respondent, subject to availability, was expressed orally by the appellant's Governor when he entertained the respondent's request to be allocated foreign currency.

The agreement to accord the respondent preferential treatment, in the disbursement of foreign currency, together with 35 other companies, did not create a binding and enforceable contract between the parties.

The performance of the appellant's obligation, to provide foreign currency, was always qualified or conditional upon its availability.

Reliance by the respondent on previous dealings did not, in the circumstances, give rise to binding contractual obligations between the parties.

The parties understood, that, in the absence of foreign currency, there was no contract between them.

The Court is satisfied, that, the evidence does not establish that a binding contract existed between the parties regarding the disbursement of foreign currency, either formally or on past practice, upon payment by the respondent of the local currency equivalent.

It was found, by the court a quo, that, the Deputy Governor, Mr Ncube, gave an undertaking to make available the US$750,000 to the respondent as and when foreign currency became available.

The Deputy Governor's position was not part of the respondent's case on the pleadings in the court a quo.

The finding by the trial court that Mr Ncube's testimony, that he had promised the respondent that it would be paid the sum of US$750,000, was binding upon the appellant is a misdirection.

The fulfilment of the promise would still have depended upon availability of foreign currency.

By the time that promise was made, the appellant had made it clear to the respondent that it was terminating the special arrangement for all companies concerned and offered to refund the Zimbabwe dollars paid by them.

The appeal is accordingly allowed with costs.

The decision of the court a quo is set aside and is substituted with the following:

“The plaintiff's claim be and is hereby dismissed with costs.”

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Quotations and Orders

HH13-08 : JEOFREY G MUKORERA vs OCEAN BREEZE ENGINE & COOLING SYSTEMS
Ruled By: MAKARAU J

HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

HH90-09 : INTERFRESH LIMITED vs MEGAPAK ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

SC28-13 : JENA MINES (PVT) LTD vs AMTEC (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

View Appeal
HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MTSHIYA J

Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

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Law Portal Zimbabwe

Quotations and Orders

HH13-08 : JEOFREY G MUKORERA vs OCEAN BREEZE ENGINE & COOLING SYSTEMS Ruled By: MAKARAU J

HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE Ruled By: MTSHIYA J

HH90-09 : INTERFRESH LIMITED vs MEGAPAK ZIMBABWE (PRIVATE) LIMITED Ruled By: PATEL J

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED Ruled By: BHUNU J

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA Ruled By: MAKARAU JP

HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES Ruled By: PATEL J

HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS Ruled By: BERE J

HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD Ruled By: KUDYA J

SC28-13 : JENA MINES (PVT) LTD vs AMTEC (PVT) LTD Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

View Appeal HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE Ruled By: MTSHIYA J

Appealed SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

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Law Portal
Zimbabwe

HH13-08 : JEOFREY G MUKORERA vs OCEAN BREEZE ENGINE & COOLING SYSTEMS
Ruled By: MAKARAU J

HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

HH90-09 : INTERFRESH LIMITED vs MEGAPAK ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

SC28-13 : JENA MINES (PVT) LTD vs AMTEC (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

View Appeal
HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MTSHIYA J

Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA