Judgment No. HB 119/2002
Case No. HC 924/2002
FREEZEWELL REFRIGERATION
versus
BARD REAL ESTATES
IN THE HIGH COURT OF ZIMBABWE
CHIWESHE J
BULAWAYO 26 JULY & 17 OCTOBER 2002
N Ndlovu for the applicant
J Sibanda for the respondent
Opposed Matter
CHIWESHE J: The applicant sued the respondent under case number
758/02 for payment of the sum of $403 156,00 being the balance for work, labour and
materials supplied to the respondent by the applicant between January and February
2002.
The respondent company had contracted the applicant to repair air
conditioners at Forestry Commission Building in Bulawayo. It had also contracted
the applicant company to repair doors for that building. At the time of the agreement
no quotations had been supplied indicating the cost of the work to be done. Applicant
duly performed its part of the contract and tendered an invoice in the sum of
$300 400,00 for the repairs of the air conditioners and $244 980,00 for the repair of
the doors. The total cost of the repairs amounted to $545 380,00. Of this amount the
respondent company has paid $153 624,00. In addition the applicant sought to
recover an amount of $11 400,00 being travelling expenses to Harare in pursuit of
payment.
The respondent entered an appearance to defend the matter and filed its plea.
HB 119/02
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In its plea the respondent admits that applicant carried out the work it was contracted
to do but contends that the charges raised by the applicant were duly unreasonable and
exorbitant, and that they required applicant to prove the reasonableness of those
charges. The respondent also stated that the sum of $153 624,00 had been paid by
their Harare head office owing to undue pressure exerted upon them by the applicant
and that the said head office did so without the full background knowledge of the
facts. Therefore that payment had been made in error as respondent had queried
applicant’s invoice from the time of its presentation. Further the respondent avers
that travelling to Harare had not been part of the agreement and that the applicant did
so of its own accord. As such respondent was not liable for any expenses incurred in
that regard. The respondent therefore consented to payment of “proven reasonable
charges”, while denying the present charges. He denied liability for the present charges
on the grounds that they were exorbitant.
Notwithstanding this plea which clearly discloses a defence on the part of the
respondent the applicant proceeded to apply for summary judgment. It cannot be said
that the applicant has established a clear and unanswerable case upon which an
application of that nature can be granted. The respondent is entitled to query the
reasonableness of the charges levied against it. The applicant alleges that an officer
of the respondent had verbally agreed to meet the charges. This is denied by the
respondent, thereby giving rise to a factual dispute which cannot be resolved without
hearing viva voce evidence. Further it is obvious that in the circumstances the
sum claimed cannot be regarded as liquid as it is subject to proof.
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Accordingly there is absolutely no merit in this application. The application is
hereby dismissed with costs on the higher scale.
Lazarus & Sarif applicant’s legal practitioners
Job Sibanda & Associates respondent’s legal practitioners