KUDYA
J: The plaintiff issued summons
against the defendant on 31 November 2009 for the payment of US$37 873-10
arising from the sale and delivery of wheat feed and soya meal during the
period extending from 3 July to 15 July 2009. The defendant admitted that
payment in the sum claimed was outstanding. It, however, contested the matter
on the ground that the plaintiff owed it a sum in excess of the claim by US$29
850-90 arising from overpayments made during the period 2 June to 7 July for
the purchase of bulk (loose and not bagged) maize. It counterclaimed for the
excess amount. The plaintiff disputed the alleged overpayment.
The defendant averred that during
that period it purportedly purchased and took delivery of 534 241 kilograms of
bulk maize from the plaintiff for which it paid the sum of US$117 530-82. It
further averred that the plaintiff actually delivered 249 120 kilograms worth
US$54 806-40. It thus overpaid the plaintiff in the sum of US$62 724-42. It
further stated that its indebtedness to the plaintiff in the sum of US$37
873-10 would be offset from the overpayment leaving the plaintiff indebted to
it in the sum of US$29 850-90.
It was agreed at the pre-trial
conference held on 28 April 2010 that the onus to establish the overpayment was
on the defendant. At the trial the duty to begin fell on the defendant. The
issues referred to trial were:
1.
Whether or not the plaintiff overstated the quantities
of the products it delivered to the defendant; and
2.
Whether the plaintiff is indebted to the defendant in
the sum of US$67 724-42
In a bid to prove its counterclaim,
the defendant called the evidence of three witnesses and produced seven
documentary exhibits. The defendant's witnesses were its security officer,
Cletos Makono; its mills manager, Joshua Ushe and the software engineer, Arnold
Musoko, who developed and installed its weighbridge computer software. The
plaintiff sought to rebut the counterclaim through the evidence of three
witnesses and the production of four documentary exhibits. The three witnesses
called by the plaintiff were its managing director Tendai Gatsi, the owner of
Felfar Enterprises (Pvt) Ltd, Christopher Luwinda and the driver who delivered
the bulk maize, Maxwell Takavadiyi.
It was common cause that:
- The defendant paid the plaintiff US$117 530-82 during
the period from 2 June to 7 July 2009 for the purported delivery of 534
241 kilograms of bulk maize. At all material times the plaintiff hired the
horse registration number ABB8992 drawing the trailer registration number
AAS 7947 from Luwinda of Felfar Enterprises. The truck in question was
often driven by Takavadiyi. Exhibit 11 showed that as long ago as 28
December 2006, the plaintiff delivered bulk maize to the defendant using
the same trailer drawn by a horse driven by Takavadiyi. The relationship
between the defendant and plaintiff went back to 2002.
- The defendant had a weighbridge at its premises that
was operated by a clerk. The clerk's station comprised of a digital
weighing scale that was connected by cable to a personal computer. On
arrival at the weighbridge the driver would alight and provide the clerk
with the registration numbers of the horse and trailer and the description
of the cargo. The clerk would write this information together with the
weight indicated on both the digital scale and computer screen in a
Product-in-Book such as exh 1. After weighing, the driver would board his
vehicle and drive it to the unloading bay/shed. After unloading the cargo
he would drive the vehicle back to the weighbridge where its net mass was
recorded before leaving the premises. Thereafter, the defendant would
deliver to the plaintiff a hand compiled goods received note in the mould
of the 16 paged exh 4 and exh 10 and a computer generated Product in
Weighbridge Ticket such as exh 2, 3, 8 and 9.
- The defendant's weighbridge computer used the
Win-Weigh-Pro software that was developed and installed by Musoko in 2004.
The clerk's computer was connected to a server that was housed in the
stock controller's office. In the stock controller's office was another
personal computer through which the stock controller would monitor and
supervise the work of the weighbridge clerk. The computer would generate
the Product in Weighbridge ticket which captured the transaction number,
ticket number, transaction date, the registration numbers of the horse and
trailer, the names of both the supplier and transporter, the product,
moisture content, the first weight when loaded and the second weight when
empty, the weight of the cargo, the name of the operator representing the
defendant and his signature and lastly the name of the driver and his
signature.
- Exhibit 7 was the main source of information for the
counterclaim.
4.1 It
is a 30 paged document downloaded from the server in the stocks controller's
office. It was produced by Musoko and it covered the period 2 June to 9 July
2009. However, pages 1, 3, 4, 5 and 6
were erroneously produced into evidence as part of exh 7 as they provide
information for the transactions of 1 March 2007. In the same vein is p 6
thereof which covers transactions of 29 February 2008 that are immediately
followed by transactions dated 8 February, 29 April, 20 and 30 May and 1 June
2009 respectively. Pages 2, 7, 11-15, 17 (there are two pages 17 which contain
different data), 20, 24, 26 and 27 cover the transactions which form the basis
of the counterclaim. At times the vehicle made two deliveries of bulk maize on
the same day. The loaded weight ranged from a minimum of 38 920 kilograms to a
maximum of 45 990 kilograms. The empty weight ranged from a minimum of 14 080
kgs to a maximum of 15 880 kgs. The weight of the cargo ranged from 25 120 kgs
to a maximum of 30 550 kgs. Pages 28 and 29 cover the weights measured for the
horse and trailer in question on 8 and 9 July 2009, after the spot check of 8
July 2009.
4.2 All
the loaded weights were entered into the computer manually through the keyboard
while the weights after unloading were captured into the computer
automatically. Each keyboard entry was immediately preceded and subsequently
followed by an automatic weighing of the vehicles that came before or after the
plaintiff's. The exceptions were on 15 and 18 June and 3 July when the
plaintiff's deliveries were sandwiched between keyboard entries that do not
relate to the trailer and horse the subject of the counterclaim.
4.3 Each
page records 100 transactions. On 2 June there were 4 other transactions on
which the keyboard was used. On 3 June there were 5 other keyboard entries. On
5 June there were 27 keyboard entries. On 8, 9, 10, 12, 27, 29, June there was
one other keyboard entry apiece. The second delivery of 6 July was followed by
a keyboard entry that did not relate to the plaintiff. On 15 June there were 7
keyboard entries and on 16 June there were 22 keyboard entries. On 17 June
there were 28 keyboard entries and 3 on 18 June. There were 16 keyboard entries
on 22 June. There were 2 keyboard entries each on 23, 25, 28 June and 7 July.
There were 3 keyboard entries on 30 June. On 1 July there were 59 keyboard
entries. On 2 and 3 July all 100 transactions for each day were entered through
the keyboard. There were 54 keyboard entries on 4 July while on 5 July there
were 9 keyboard entries. On 6 July there were 2 other keyboard entries. There
were no keyboard entries recorded on 8 and 9 July.
- The defendant's claim was particularized in Annexure
A, the attachment to its counterclaim. Annexure A is extrapolated from
both exh 4 and 7.
- The events of 8 July 2009 led the defendant to mount
an investigation from which it suspected that the plaintiff had overstated
the deliveries of the period 2 June to 7 July 2009.
The
pith of Makono's testimony was that on 8 July 2009 he carried out a spot check
of the delivery made by Takavadiyi. He requested that the vehicle be reweighed
before it offloaded its cargo. Before it was reweighed, he went to the
weighbridge clerk's station with Joshua Ushe, the mills manager and James
Chidhindi, the stocks controller. He inspected exh 1, the Product-in-Book
compiled by the weighbridge clerk Hilda Gudo. The mass of the vehicle recorded
by Gudo was 40 760 kgs. He checked the figure captured by the computer,
exh 2. It was similar to the one in
Gudo's book. The reweighed mass of the vehicle (in exhibit 3) was 29 380 kgs.
The loaded mass had been overstated by Gudo by 11 380 kgs. He stated that the trailer was full to the
brim of bulk maize. Gudo did not hold the access code to the computer but
Chidhindi did. He formed the opinion that Chidhindi had manipulated the figure
recorded by the computer while Gudo had connived with him by failing to record
the figure displayed on the weighbridge scale. Gudo proffered no explanation
for the discrepancy. He questioned Chidhindi who confessed that he had
manipulated the computer to reflect a higher tonnage in furtherance of a scheme
he had entered into with Gudo and Snocross to share the spoils after Snocross
was paid. Chidhindi told him that this was the first such incident. Makono did
not believe him. He tasked Musoko to investigate the data base for the period
January to July 2009. The results of the investigations are covered in exh 4, 5
and 7. Exhibit 5 is an extract from the Central Vehicle registry for the
trailer AAS7947. It indicates that when the vehicle was registered on 14
February 1979 its net mass was 7 470 kgs while its gross mass was 32 000 kgs.
He averred that Gudo was hauled before a disciplinary committee but she
absconded from employment. Her fellow clerk Shepherd Mavhunga who was off duty
did not resume duty while Chidhindi resigned. He concluded that the plaintiff
acted in collusion with the defendant's employees Gudo, Mavhunga and Chidhindi
in overstating the tonnage it sold and delivered to the defendant on 18
occasions; hence the counterclaim.
Under cross examination he revealed
that both Gudo and Chidhindi were acquitted of the criminal charges that were
leveled against them. He could not dispute that the overstatement could have
been due to a genuine mistake on the part of the operator of the weighbridge or
a technical fault in the computer operating system. He also revealed that Gudo
explained to him that she had recorded in the product in book the weight
appearing on the computer screen instead of the one on the weighbridge digital
scale. He had seen Luwinda when he brought diesel for the truck. He denied informing
him that there was a technical fault at the weighbridge but averred that he
told him that the mass of the horse and trailer had been overstated. He
confirmed that the trailer had sideboards but insisted that it was filled to
the brim with loose maize. He was adamant that the maximum weight of that
trailer when filled to the brim was 13 840 kgs. He confirmed that after the
discovery of the weight anomaly the same trailer delivered 15 tonnes of wheat
feed filled to the brim on the same day. It also made five other deliveries on
subsequent dates.
Makono materially contradicted
himself in his evidence in chief. He averred that he absolved Gudo and
suspected Chidhindi of manipulating the computer system because he held the
password to the server. Later he averred that Hilda typed the wrong weighbridge
figure into the computer. It seemed to me that he falsely professed knowledge
of the duties and functions of a weighbridge operator in regards to the
defendant's computer operating system. The second contradiction concerned his
averment that Musoko alerted him to the existence of a hidden security feature
in the software which would indicate whether the weight appearing in the data
base was recorded automatically or manually. Musoko in his testimony stated
that the only person who could type the weight manually was the weighbridge
clerk and not the supervisor. He was wrong in his assumption that Chidhindi
could manipulate the server.
Ushe was present when the vehicle in
question was reweighed. He confirmed Makono's evidence in this regard. Contrary
to Makono's testimony he stated that Gudo stated that she recorded the figure
she had seen. He also stated that Chidhindi resigned after his acquittal at
Mbare Magistrate's court. Unlike Makono he stated that the mass indicated on
the weight deck digital scale is automatically captured by the computer and
Gudo copies it from the computer screen and records it in the product in book.
He also revealed that anyone with the knowledge of the password could
manipulate the computer. He further revealed that when the computer system was
down, a manual weighbridge ticket was raised and taken to the stocks controller
who typed it into the computer.
Musoko explained how the
Win-Weigh-Pro software that he installed in 2004 operates. He was called to
ascertain whether the weighbridge system was working properly. A different
vehicle was weighed twice and the system performed to expectation. He went into
the data base and discovered that Chidhindi, the stock controller who held the
password into the computer program, had deleted the automatic computer entry of
the weight of the horse and fully loaded trailer and typed in the higher
weight. He confirmed Ushe's testimony on how the system functioned when the
computer was down. The weighbridge clerk would record the weight on a card by
pen and take it to the stocks controller who would use the computer keyboard to
enter the figures. At the request of Makono he downloaded the previous
transactions shown in exh 7 from the server. He highlighted all the motor
vehicles from the plaintiff including the truck and trailer in issue over that
period. He further marked a cross by pen on all the transactions involving the
truck and trailer in issue. An odd pattern emerged on the trucks from the
plaintiff. Entries for the loaded vehicles were manually recorded but when the
same vehicle was leaving after unloading it was automatically measured. Most of
the loaded transactions were sandwiched between other vehicles from different
transporters which were automatically weighed. He formed the opinion that the
manual entries were deliberate.
Under cross examination, he admitted
that there were entries for other transporters which were manually captured.
There were a few which were manually captured when the computer was not
working. More than 90% of the plaintiff's transactions were captured manually
when the computer was working. The mechanical test he conducted was simple,
fast and efficient. He clarified
that the stocks controller was the administrator of the computer system whose
password would allow him to enter the program and delete information such as
incomplete transactions. The weighbridge clerks had passwords which allowed
them to operate the system but not to delete or alter information.
Musoko was a good witness. He
was an expert in his field. His findings in exh 7 were common cause.
The plaintiff called its managing director. He established that his
company was owed US$37 873-10. He disputed that the plaintiff owed the
defendant US$ 62 724-42 or US$ 29 850-90 or any sum of money. He denied that
the plaintiff overstated any tonnage on any one of its deliveries to the
defendant during the period from 2 June to 7 July 2009 or at all. He did not
dispute the information in all the exhibits that were produced by the
defendant. He established that the plaintiff had been doing business with the
defendant for close to ten years. The plaintiff was a commodity brokerage. Its modus operandi was that it would
purchase maize from farmers. The plaintiff benefited from the commissions it
charged on both the farmer and the defendant. He hired Felfar transport to
carry maize for the plaintiff if the farmer did not have his own transport. He
had been using the trailer from Felfar since 2004. From June 2009, he was
contracted by the defendant to supply 300 tonnes of bulk maize per week. He
subcontracted ten trucks to do so. During the period covered by the
counterclaim he purchased maize from farmers in Mashonaland Central. He relied
on the tonnage provided by the defendant in the goods received note of the
defendant and delivery note in the plaintiff's name as shown in the two
documents produced as exh 10. The tonnage would tally with that in the product
in weighbridge ticket such as exh 8 and 9. He would present exh 10 to the
defendant's head office who would pay after checking its accuracy with its
mill.
He confirmed that on 8 July 2009 he
attended at the defendant's premises at the behest of David Irvine and George
Economou. The two were in the company of Makono. They informed him about the
overstatement. They did not make any allegations of impropriety against him. He
was willing to assist them with their investigations but his offer was rebuffed.
He thereafter made the deliveries of wheat feed and soya meal, the subject of
the main claim. Angela and Shannon, the defendant's employees who made payments
promised payment once the defendant was in funds. When the agreed time frame
for payment elapsed he wrote a letter of demand. It was ignored and he issued
summons. He was surprised to receive the counterclaim alleging that the
plaintiff had overstated the tonnage of the bulk maize delivered to the
defendant.
Under cross examination he disputed that
the capacity of the 30 tonne truck he hired from Felfar was 13 840 tonnes when
full of bulk maize. He denied that the trailer was full to the brim during the
spot check of 8 July 2009. He denied conniving with the defendant's employees.
He disputed deriving benefit from the alleged overstatements. He denied that
there were any such overstatements during the period set out in the
counterclaim. He was taken through exh 7. He admitted that the entries that
related to his trucks were odd. He denied the actions of the defendant's
employees were initiated by the plaintiff.
The managing director of Felfar
transport Christopher Luwinda and his driver Maxwell Takavadiyi testified for
the plaintiff. It was common cause that Takavadiyi was the driver of the
vehicle whose tonnage was overstated on 8 July 2009. The driver was not privy
to the internal workings of the defendant's systems. Nor did he connive with
any of the defendant's employees. Both these witnesses reinforced each other's
testimony in regards to the quantity of the bulk maize that triggered the
counterclaim. They stated that it was ferried from Chibuku breweries from a
farmer, Abraham Chimukanga of Banket, who wanted immediate cash, which he could
not obtain from Chibuku. The maize was in a UD truck that was towing a trailer
which broke down at Chibuku. Both stated that the quantity of the maize was 15
tonnes and that it did not fill their 30 tonne trailer to the brim. Both stated
that their tarpaulin covered load was half full. They further stated that the
truck had side boards which were 1,5 metres high. Both accepted that though the
truck was designed to carry the registered maximum load of approximately 25
tonnes; it could carry in excess of 30 tonnes because of the size of the side boards.
The managing director produced exh 11, a delivery note similar to the one in
exh 10, dated 28 December 2006 that showed that the trailer in issue had
delivered bulk maize with a tonnage of 30 200 kgs at the defendant's premises.
The plaintiff's managing director
was a truthful witness. He gave his evidence very well. He was not shaken in
cross examination. His version was a narration of his company's business
relationship with the defendant. The other two witnesses who were called by the
plaintiff were candid and forthright in their testimonies. They admitted some
facts which were against their interest such as knowingly overloading their
trailer. Their versions on the weight of the loaded trailer were corroborated
by the documentation that was raised by the defendant's employees which was
produced in evidence.
The onus to show that the plaintiff
overstated the tonnage of the trailer fell on the defendant. Mr Madya, for the defendant, contended that
the defendant had led credible evidence from which the court could draw the
most probable inference that the plaintiff was liable. He correctly set out the
law on the onus of proof based on circumstantial evidence with reference to the
work of Schwikkard and Van der Merwe entitled
Principles of Evidence 3rd ed at
p 538 where the learned authors
state:
“In civil
proceedings the inference sought to be drawn must also be consistent with all
the proved facts, but need not be the only reasonable inference: it is
sufficient if it is the most probable inference. For example in AA Onderlinge Assuransie Bpk v De Beer 1982 (2) SA 603(A) it was held
that a plaintiff who relies on circumstantial evidence does not have to prove
that the inference which he asks the court to draw is the only reasonable
inference: he will discharge his burden of proof if he can convince the court
that the inference he advocates is the most readily apparent and acceptable
inference from a number of possible inferences.”
The
defendant avers that it has shown on a balance of probabilities that the
trailer weighs 13 840 tonnes when full of bulk maize. It contends that this was
the weight of the trailer found after the spot check on 8 July 2009. It then
seeks me to infer that this must have been the weight of the bulk maize delivered
by the same trailer during the period extending from 2 June to 7 July 2009.
The issue to determine is therefore
whether the defendant has shown that the trailer was fully laden with bulky
maize on 8 July 2010. The defendant did not plead as much in its counterclaim.
This averment was not stated in the summary of evidence of Makono. It emerged
for the first time during the evidence of Makono. In the pleadings and summary
of evidence of the defendant, it had averred that it was relying on the second
weight of the trailer of 8 July 2009. The thunderbolt from the blue from the
defendant was countered by the evidence of Luwinda and Takavadiyi who stated
that the trailer was not fully laden on 8 July 2009. It was surprising that
Makono did not bring this factual state he allegedly noted to any of his
co-workers and management or to any of the plaintiff's witnesses who attended
the scene on that day. The assertion that the trailer was fully laden appeared
to me to have been a latter day fabrication by Makono. That the trailer was
fully laden ran contrary to the delivery note issued on 28 December 2006; long
before the period of the counterclaim. The load carried by this trailer then
was 30 200 kgs. The defendant was in charge of the weighing of the trailer. The
plaintiff relied on the weight provided by the defendant. It did not weigh the
trucks before the defendant did so. It did not control any of the weighing
procedures nor even confirm their accuracy. The defendant had the information
on its computer data base of the weight of the trailer going back to 2006. Its
data base was set up in 2004. The fact that it did not produce any
documentation in the mould of exh 7 showing that the full load of bulk maize
carried by the trailer was 13 840 kgs during the period spanning from 2006 to 1
June 2009 is indicative of the fact that that could not be its weight. The
plaintiff's testimony that it delivered a full load of wheat feed which weighed
more than 13 840 kgs was confirmed by the last two pages of exh 7. It was
common cause that a fully laden load of wheat feed would not measure the same
weight as a fully laden load of bulk maize. That it was not fully laden is
consistent with the documentation in exh 4.
It seems to me that the duty fell on
the defendant to show through the evidence of the alleged conspirators that
there was indeed such a conspiracy covering the counterclaim period. All that
Makono alleged was that Chidhindi confessed to such a conspiracy. It was not
detailed. It did not identify who in the plaintiff conspired with him. It was
made privately to Makono. Chidhindi pleaded not guilty at the criminal trial
and was acquitted. His plea was inconsistent with such a confession ever having
been made. In any event Chidhindi allegedly stated that the overstatement of 8
July 2009 was the first such conspiracy. Makono did not believe him. Chidhindi
is portrayed as an untruthful individual by Makono. In my view that confession
carries no probative value at all.
It seems to me, therefore, that the
defendant has not shown that the trailer was fully laden. I answer the first
issue referred to trial in favour of the plaintiff. It follows therefrom that
the defendant did not overpay the plaintiff in any sum at all.
The plaintiff prayed for the
dismissal of the counter claim with costs on the higher scale. I am satisfied
that the defendant acted in a perverse manner in raising and persisting with a
hopeless counter claim against the plaintiff. This is an appropriate case to
mulct it with costs on the higher scale.
Accordingly, it is ordered that:
- The defendant shall pay to the plaintiff the sum of
US$37 873.10 with interest a tempore
morae from the date of the issue of summons to the date of payment in
full.
- The defendant's counterclaim is dismissed.
- The defendant shall pay the plaintiff's costs for
both the main claim and the counter claim at the scale of legal
practitioner and client.
Chinamasa, Mudimu, Chinogwenya & Dondo, plaintiff's legal
practitioners
Wintertons, defendant's legal practitioners
