BHUNU
J: The plaintiffs are husband and
wife residing at number 4 Softstone Close, Chisipite, Harare 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 a marblelite finish. The defendant provided a written
quotation of $7 904 235-00 It is admitted that the plaintiff paid the amount in
full in terms of the contract.
The written
quotation provided for a guarantee in the following terms:
“GUARANTEES
The swimming
pool tiles are guaranteed for 2 (two) years from the completion date against
latent defect in its construction. Should a defect in the work become evident
during the period it will be repaired free of charge. In order to keep the
structural guarantee you will need our permission to empty the pool. The pool
surrounds are guaranteed for 6 (six) months, due to the different ratio of
structural movement.
The
manufacturer's guarantees regarding the filtration equipment will be honoured
by ourselves. These warrantees run for 6 (six) months from the construction
hand-over date depending on the component.
This quotation
does not include the cost of filing the swimming pool with water, or the pool
chemicals.”
The
defendant refurbished the swimming pool in terms of the agreement but not to
the plaintiffs' satisfaction as the swimming pool soon developed a leaching
problem which the defendant has failed to rectify.
The
plaintiffs then issued summons claiming specific performance for the supply and
fitting of non leaching chip pool tiles or alternatively payment of damages in
the sum of $787 600 000-00. The amount
has since been amended to read US$9 500-00 being the current cost of supplying
and fitting the marble pool finish.
That
the pool developed a leaching problem soon after refurbishment is not in
dispute. What is in dispute is the cause of the leaching problem. The
plaintiffs allege that the leaching problem was due to poor workmanship by the
defendant's employees whereas the defendant alleges that it was due to
incorrect maintenance of the pool PH levels by the plaintiffs.
The
plaintiffs maintained that they kept the correct pool PH levels as they have
extensive experience in maintaining swimming pools. On the other hand the
defendant was adamant that it refurbished the swimming pool in accordance with
the manufacturer's specifications. The product is manufactured by Cemcrete
South Africa. It comes with a “POOL START– UP
GUIDE” which contains detailed complex application instructions. The
instructions read in part:
“CEMCRETE POOL START-UP GUIDE
An important
step by step guide to chemical treatment of New Marble Plaster Swimming Pools
Day minus 1
1. Before the pool is plastered check tap
water for:
a.
pH (not to be below 7.2);
b.
presence of iron or copper in solution. If present add
metal remover at stage (4). It is advisable to add a metal remover even if no
metals are found to be present; and
c.
calcium hardness (ideal 300 – 400 ppm) if below will
need to add calcium chloride at step (5)
Day 1
2. Plaster pool.
Day 2
3. The day following plastering the plaster should be treated
with CEMCRETE'S Pool Plaster Hardener, especially advantageous on coloured and
dark marble Pool Plaster to inhibit free lime growth.forming white patches on
plaster surface.
4. Can immediately start to
fill pool from deep end with old towel loosely tied over end of hose to avid
direct flow of water over new plaster. In hot dry conditions it is advisable to
damp down un-submerged plaster with a fine spray every two hours until pool is
full.
5. Add metal remover while
filling.
6. When full add required
calcium chloride in flake form dissolved in water and check again for metals
and calcium hardness.
7. Start filter and run, do
not use automatic pool cleaner for three weeks, use hand vacuum on long handle
to remove dust and debris. Brush surface with soft pool brush and back wash
often
8. Leave pH high, this will
aid the curing and hardening process of the marble pool plaster. Do not use
any acid for first three weeks.
9. Dose only with small
quantities of stabilized granular dry chlorine – (HtH), or unstabilized liquid
chlorine during this period.
Day 22
10. After three weeks
check pH and add only a ¼ cup of Hydrochloric Acid (per 70 000 litre pool)
dissolved in a plastic bucket of the pool water in any single six hour period
with the filter running. Periodically dose until pH reads between 7.4 and 7.6.
It could take over a week before the pH is corrected. (Never use
Sulphuric Acid in the pool)
11. Follow chlorine manufacturer's instruction for
dosing from now on.
12. Stabilize water if desired. First dissolve
granules in boiling water
13. If
salt water chlorinator is installed add salt to water and switch on
chlorinator.
14.
Automatic pool cleaner can now be connected.
NB. Never overdose with any chemical hoping that the effect will
last two weeks rather than one. Chemical reactions do not work that way.
Overdosing with acid causes etching and
destroys total alkalinity. Always dilute acid before dosing and add while the
pump is running to ensure an even distribution.
Overdosing with calcium hypochlorite (dry
granular chlorine) causes scaling and high pH.
Overdosing with Trichloroisocyanuric acid
(stabilized chlorine) causes a drop in pH and etching of the plaster as it
neutralizes itself on the Marble plaster. Keep pill or granules well away from
the immediate edge of the pool or surface of the marble pool Plaster. Also keep
out of direct aimflow and away from and near the weir.
The use of a gas chlorinator is not
recommended due to the chemical reactions that take place when the gas is
introduced to the water, HCI and causes etching of the marble plaster surface
and serious staining will occur.”
Both
plaintiffs gave evidence to the effect that when the defendant completed the
refurbishment there was no proper hand over takeover of the swimming pool and
they were not provided with a copy of the pool Start-Up Guide. As a result they
continued to maintain their pool in the normal way as they had previously done
before refurbishment.
When
they discovered the leaching problem they contacted the defendant who
acknowledged liability saying that the problem was due to its failure to apply
pool plaster hardener when refurbishing the pool as recommended by the
manufacturer. The defendant thus wrote to them on 30 April 2007 apologizing and
promising to rectify the problem. The letter reads:
“Dear Mr &
Mrs Mavurudza
We apologise
(sic) for the delay and not updating you about the way forward to sort out the
leaching of your pool. We managed to purchase 25 litres of the pool hardener
from South Africa
as recommended by the Cemcrete Company to apply to your pool. Unfortunately we
found out that the pool hardener can only be used when applying the pool
plaster not on the existing pool. We contacted Cemcrete Company again to find
out if they is (sic) any way we can solve the problem and they advised (sic) to
get orbital grinder with a 60 grit sand paper.
We layed a sqm
of marble sample which we used the orbital grinder as a trial area for sanding
(sic). On sanding the trial area it ended up being rough, scored and
inconsistent. We phoned Cemcrete for the third time to advice (sic) us what the
best solution to this problem and we are still waiting for their advice. We are
hoping to have an answer end at the of this week (sic).”
Yours Faithfully
Mielder and
Construction”
It
is common cause that the defendant initially attributed the leaching problem to
its failure to apply pool plaster hardener where upon it attempted to rectify
the problem in consultation with the manufacturers. It is also an established
fact that when all attempts to rectify the problem had dismally failed the
defendant made an about turn and began to shift the blame onto the plaintiffs.
Thus
when sued the defendant denied liability blaming the leaching problem on
plaintiffs' failure to maintain the correct ph balance in the pool and or poor
maintenance of the pool. Apart from wild speculation the defendant had no concrete
basis for blaming the leaching problem on the plaintiffs. It was unable to
rebut the plaintiffs' assertion that they kept the correct ph level and
properly maintained the pool.
Despite
being appraised of the leaching problem at an early stage it made no attempt to
test the ph level of the water used to fill the pool. It carried no
investigation on how the plaintiff had maintained the pool up to the time the
leaching problem occurred.
The
defendant's managing director gave evidence to the effect that his company
relined the pool in accordance with the standard application for such product
as recommended by the manufacturer of the product Cemcrete South Africa.
It
is needless to say that he is not qualified to give that kind of evidence
because he was not present when the job was done. He therefore has no personal
knowledge as to how his employees performed their duties. None of those
employees who actually did the job was called to substantiate whether or not
all the intricate procedures laid down in the Pool Start-Up Guide were
followed. Although the defendant had a site foreman responsible for the day to
day supervision of the work, he was not called to shed light on the quality and
nature of the work done in refurbishing the pool. No cogent reason was given as
to why he was not called to give evidence on this crucial aspect of the
defendant's case. Under cross-examination he admitted that his employees did
not use the Start–Up Guide. He was asked:
Q. When you started and finished you did
not have any instructions or guide from the manufacturers?
A. As far as the Start–up Guide is
concerned we did not have such instructions.
Q. This installation was done from the
heads of the construction personnel?
A.
From the experience we have
gained from the 1970's
Q. What were you relying on?
A. There are instructions on the 49 kg bags
which tally with our experience since the 1970's.
Q.
What level of pH did you advise Dr.
Mavurudza to maintain?
A. 7.1
Q. What are you relying on to say he did
not?
A. Leaching cannot occur when the pH is
maintained at 7.1.
Q. What did your company do to try and
rectify the problem?
A. We waited until the curing period had
expired so there would be no free calcium particles in the finish and that the
plaster would be hard enough to use an abrasive or chemical to remove the
scaling.
Q. Did you check the pH level?
A. No.
Q. Have you ever checked the pH level
in this swimming pool?
A. No
No
weight can therefore be placed on the managing director's evidence based on
unsubstantiated hearsay evidence. Equally, the defendant's attempt to blame the
leaching problem on poor pH maintenance does not wash for the simple reason
that he did not measure the pH level when he had ample opportunity to do so.
Had the problem been solely attributable to high pH levels surely the first
thing the defendant would have done was to measure the pH level and advise the
plaintiffs of the root cause of their problem. This the defendant did not do.
We
already know that the defendant's employees omitted to add the pool plaster
hardener yet the Start-Up Guide stipulates under day 2 that, “The day
following plastering the plaster should be treated with CEMCRETE's pool plaster
hardener, especially advantageous on coloured and dark marble. Pool Plaster to
inhibit free lime growth forming white parches on plaster surface.”
Despite
the above clear written guidelines from the manufacturer stipulating that it is
necessary to use pool plaster hardener to inhibit free lime growth the
defendant's managing director Mr Meilder gave sworn testimony to the contrary.
He gave evidence to the effect that when this problem started he spoke to the
manufacturer's technical manager in Johannesburg
who told him that it was not necessary to apply pool plaster hardener.
That
evidence directly contradicts an e-mail sent on 20 March 2007 by Jeniffer Cheu
one of the defendant's employees addressed to Russel Gullies the manufacturer's
export manager. The e-mail reads:
"H Russel
Russel, we are
still battling to solve the pool of our customer. At first you told us to
purchase 25 litres of pool hardener and we did that and then we discovered that
we can only use pool hardener before filling the pool. We called you back
and you told us that we can use a (n) orbital grinder with the 60 grit sand
paper…"
Having
regard to the above e-mail that has not been challenged, Mr Meilder's evidence
to the effect that the same Russel Gillis told him that it was not necessary to
use pool plaster hardener was obviously false and misleading.
Vincent
Muyeza a director in Jackson Muyeza Pools a reputable company in the
construction of pools gave sworn evidence to the effect that it is necessary to
add pool plaster hardener. He had this to say:
"I am aware
of the mabelite supplied by Cemcrete South Africa.
I have used it before. This product comes with a hardener. Its mandatory that
it be applied to the finish. Then you also put a little bit when you are
filling the pool with water.
Failure to put
the hardener weakens the mabelite. I am familiar with their starter up guide if
it's the same as that we use”.
Again
no weight can be given to this aspect of Mr Meilder's evidence which is based
on unsubstantiated hearsay evidence contrary to the manufacturer's written
guidelines. Mr Meilder is a man of limited education who started work at the
age of 12 years. He gave his evidence badly. He was hesitant and unsure of
himself in the witness stand. He was clearly shaken and sweating profusely. His
evidence had no ring of truth as it went against the grain of evidence.
The
defendant's conduct in initially accepting liability and attempting to rectify
the leaching problem but then turning around and denying responsibility upon
failure to rectify the defect betrays a guilty frame of mind.
On
the other hand the plaintiffs told a simple and believable story consistent
with proven facts. They corroborated each other in every material respect. They
were honest and credible witnesses. I believe them
Looked
at from a different angle, even if I were to accept for one moment that the
leaching problem was due to poor maintenance by the plaintiffs as alleged by
the defendant, I would still find it liable. Mr Muyeza gave uncontroverted
evidence to the effect that it is standard practice after construction of the
pool for the owner to maintain the pool under the guidance of the service
provider.
I
have already demonstrated that both plaintiffs testified that the defendant did
not give the necessary guidance and the defendant was unable to rebut that
assertion. The defendant was therefore negligent and to that extent liable to
the plaintiffs for the defect which was due to poor PH maintenance.
I
accordingly have no hesitation whatsoever, in holding that the plaintiffs have
proved their case against the defendant on a balance of probabilities. For that
reason they are entitled to damages in lieu of specific performance. I now turn
to consider the quantum of damages. in lieu of specific performance..
The
plaintiffs' claim was initially for $787 600 000-00. That amount was
subsequently amended to read US$9 500-00. It is common cause that there is a
limited number of service providers offering the same service. Leisure living
is a reputable service provider which supplied a quotation of US$9 500-00
Jackson
Muyeza pools supplied a quotation of US$7 000-00.
Although
the initial transaction between the parties was in local currency both parties
were alive to the fact that the product was to be imported using foreign
currency. Now that the Zimbabwean Dollar is no more the justice of the case demands
that compensation be paid in foreign currency. The parties were aware all the
time that if there was need to replace the product it will have to be done
using foreign currency. They must therefore be deemed to have agreed that if
there was need for compensation it would have to be in foreign currency.
As
the plaintiffs have already performed their party of the bargain, it is only
fair, just and proper that the defendant must be compelled to perform its part
of the bargain failure of which it is obliged to compensate the plaintiff so as
to place them in the same state they would have been had the defendant properly
performed its part of the bargain.
That being the case the plaintiffs' claim can
only succeed. It is accordingly ordered:
1.
That the defendant be and is hereby ordered to rectify
the defects on the plaintiffs' mabelite tiles in terms of specifications from
Cemcrete South Africa (Private) Limited within
14 days of service of this judgment upon it.
2.
In the alternative, the defendants be and are hereby
ordered to pay damages in the sum of US$7 000-00 being the cost of repairing
the defects
3.
The defendant shall bear the costs of suit.
P Chiutsi Legal Practitioners, plaintiffs' legal practitioners
Gollop & Blank, defendant's
legal practitioners.
