Counsel
for the plaintiff's submissions are
as follows:
If
the contract had been fulfilled, i.e.
if the defendant had forwarded the plaintiff's application timeously, the
plaintiff would have been included on the Reserve Bank of Zimbabwe list published
in April 2009. The plaintiff would, consequently, have had an enforceable
contractual right, or, at the least, a reasonable expectation ...
Counsel
for the plaintiff's submissions are
as follows:
If
the contract had been fulfilled, i.e.
if the defendant had forwarded the plaintiff's application timeously, the
plaintiff would have been included on the Reserve Bank of Zimbabwe list published
in April 2009. The plaintiff would, consequently, have had an enforceable
contractual right, or, at the least, a reasonable expectation to receive
payment from the Reserve Bank of Zimbabwe. However, because of the defendant's
breach of contract, the plaintiff does not have this right. If the defendant
had performed its contractual obligation to the plaintiff, the latter would
have been entitled to receive the payment claimed from the Reserve Bank of
Zimbabwe under the retention scheme.
The
amount of that payment represents the measure of damages due to the plaintiff.
Counsel
for the defendant counters that the plaintiff has not proved any contractual
right of any tobacco grower that could be enforced against the Reserve Bank of
Zimbabwe. Therefore, the plaintiff cannot claim the right to be put in any
better position than a grower whose application was properly lodged with the Reserve
Bank of Zimbabwe. In any event, even if such right does exist, it is not
enforceable as against the Reserve Bank of Zimbabwe as a State entity with
immunity against execution. Alternatively, it is submitted that the plaintiff's
claim is premature until such time as the Reserve Bank of Zimbabwe begins to
pay out the growers included on its April 2009 list.
It
is trite that the claimant suing on a breach of contract is entitled to be put
in the same position as he would have been in had the contract been duly
performed. See Sommer v Wilding 1984 (3) SA 647 (A).
In
the instant case, had the defendant performed its contractual obligation, the
plaintiff would be in the same position as all the other growers whose claims
for the retention payment had been properly submitted to the Reserve Bank of
Zimbabwe.
The
evidence before this Court is that the Zimbabwe Tobacco Association has filed a
class action against the Reserve Bank of Zimbabwe, on behalf of all the growers
included on the April 2009 list, for the recovery of their 25% retention
payments. However, no detailed evidence was adduced as to the specific terms of
the Reserve Bank of Zimbabwe publication in The Herald or as to its contractual
implications.
Was
it an unequivocal acknowledgement of indebtedness on the part of the Reserve
Bank of Zimbabwe or merely an acknowledgement that the growers listed had
submitted their claims?
The
wording of paragraph 2.8 of the Reserve Bank of Zimbabwe's Revised Operational
Modalities appears, prima facie, to be couched as an undertaking to transfer
the global US$ amounts claimed to the growers' respective banks. However,
whether this constitutes a binding and enforceable contractual undertaking is
an issue that cannot presently be adjudicated upon without full evidence and
argument on the matter.
Disposition
As
I have already stated, the plaintiff's entitlement to an award of damages should
place it in the same position as the growers listed in the Reserve Bank of
Zimbabwe notice of April 2009. It would be absurd and entirely anomalous for it
to be put in a more favourable position than those growers whose applications
were duly forwarded to the Reserve Bank of Zimbabwe. At the present time, the
rights and entitlements of the listed growers as against the Reserve Bank of
Zimbabwe are the subject of the class action instituted by the Zimbabwe Tobacco
Association. Until such time as that matter is finally determined or until the Reserve
Bank of Zimbabwe opts to voluntarily pay out the listed growers, whether fully
or partially, it is not possible to quantify the measure of damages due to the
plaintiff by reason of the defendant's breach of contract.
In
short, at the present time, the plaintiff holds what is essentially a
contingent right to damages as against the defendant, dependent upon the
eventual outcome of the claims lodged by the listed growers….,.
It follows that the plaintiff's action must be
dismissed, and it is hereby so dismissed with costs.
