HMA 14-25
HMSC 254-24
ABLEXONE ZEBRALION
And
BLESSED KANYEMBA
And
TAOWNYASHA MADZORE
versus
TAWONGA TAWANDA MUSINA
HIGH COURT OF ZIMBABWE
CHAREWA J & ZISENGWE J
MASVINGO, 17 January 2025
Written reasons provided on
Opposed application
FRT Chakaduda, for the appellants
Respondent in person
Written reasons provided on
ZISENGWE J: On 6 November 2024 we delivered a brief ex-tempore judgement upholding, for the most part, an appeal against the decision of the magistrate Court sitting at Masvingo (the court a quo). The court a quo had granted what was essentially an order for specific performance (other related matters) against the appellants; this followed the collapse of a contractual relationship between the parties. We now provide detailed reasons informing our decision at the behest of the respondent who has made a formal request for the same.
In a word, what was intended to be a straight forward agreement for the hire by the appellant of the respondents Nissan Caravan motor vehicle (“the motor vehicle”) was rendered virtually still born which it (ie motor vehicle) broke down. This was barely a month into what was intended to be a relatively long term agreement. Things got to head when the appellants refused to meet the costs of the repair of the motor vehicle but also any sums payable had the motor vehicle not broken down.
The broad outline of the dispute as same can be gathered from the various documents filed by the parties both in the proceedings a quo and in this appeal is as follows. The first appellant is a company duly incorporated in terms of the laws of Zimbabwe. According to its plea the second and third appellants are merely its director and manager respectively. The appellants’ desirons of embarking on some of its projects on the Chimanimani and Chipinge districts of Zimbabwe entered into an agreement with one Brighton Madzanire in terms of which the appellants (more specifically the first appellant) would here Madzanire’s motor vehicle for a monthly rental fee.
As it turned out, Brighton did not have two cars which the appellants needed hence he roped in the respondent. The latter then provided the aforesaid Nissan Caravan motor vehicle. Whether parties entered into agreement separate and distinct between that Madzanire and the appellant was hothy contested both in the proceedings below and in this appeal.
To compound matters, even if one were to accept that a binding agreement was indeed entered between the parties over the hire of the respondents ‘motor vehicle, there is a dispute over one of its key terms, which will be dealt with later in this judgment. Suffice it however to say, pursuant to the arrangement arrived at, the respondents motor vehicle was dispatched to the Chimaninani district of Manicaland as part of the appellants activities in that area. It is driver was employed by the respondent. The relationship between the parties broke down when the respondent’s motor vehicle did. This was sometime in February 2023irked by such refusal the respondent approached the court a quo for relief. In so doing he set out two separate claims. Under claim 1, he claimed that the appellants had without just cause reneged on its contractual obligation to pay the sum of US$ 800 for the hire of the motor vehicle for the month of February 2023.
In the claim 2, the respondent sought to recover the sum of US$ 3 600 for what he termed “hiring arrears” for the period March to June 2023. Additionally he also sought the following:
The repair and delivery of the motor vehicle (from Chipinge) to Masvingo
Payment of “rental arrears” arising after January (he obviously meant June) 2023
Payment of all vehicle licensing (fees) related to arrears and penalties (which) accused after March 2023
In their plea, the appellants apart from flathy denying any liability whatsoever also raised two special pleas. Firstly, they intended that in respect of claim 1 they had not entered into any agreement with the respondent; but with Brighton Madzavire. They therefore averred that the respondent lacked the requisite locus standi to institute the claims. Secondly, they continued that the second and third appellants had been improperly joined as defendants given that the contract which constituted the basis of claims 2 had been conuded between the respondent and the first appellant. They pointed out in this regard that in the basis of separate legal personality of corporation, the second and third appellants being merely functimaies of the first appellant could not be held liable for the debts.
On the merits, in respect of court 1, the appellants reiterated its stance based on privity of contract and averred that it never entered into any agreement with the respondent for the month of February 2023.
In respect of the second claim, while admitting the existence of the agreement between first appellant and the respondent, which agreement according to them was as oral one, insisted that it was the respondents responsibility to keep the motor vehicle in good repair. Therefore according to them, which the motor vehicle broke down in January 2023, it had no obligation to repair it let alone pay for services not rendered. They further maintained that the written contract which they claimed was drawn up by the respondent was of no force or effect as it was never signed by the parties – it remained a draft.
The summaries of the evidence of the witnesses who testified at the trial which ensued will be done later in this judgment. This is an account of the major concessions made, particularly by the respondent during the hearing of this appeal which render the regurgitation of some portions of the evidence adduced in the proceedings a quo unnecessary. Suffice it however to say that at the conclusion of the trial, the court a quo granted the two claims almost in their entirety.
Similarly, the court found that as far as claim 2 was concerned, the court a quo that the parties had entered into a valid oral contract. It referred to several cases where the courts upheld the validity of oral contracts (Mawere v Mupedziswa HC-762-14, Tshuma v Ngozo HB 144-18, Masukme v Chawatama HH-460-18).
Ultimately the court a quo accepted the version of the respondent and rejected that of the appellant chiefly on the basis of lack of corroborative evidence of their version. More accurably, it found that the two witnesses for the appellant’s case had contradicted each other in material respects. It concluded that the appellant were contractually obligated to effect repair on the respondents motor vehicle in the event of its break-down.
The court a quo therefore granted, the two claims wholesale. It gave the following order:
The defendants are ordered to pay the plaintiff the sum of $800 US, being the rental arrears for February 2023.
The defendants are ordered to pay the plaintiff the sum of $13 500, being arrears for the month of March to June 2024.
The defendants are further ordered to repair the plaintiff’s NISSAN CARVAN ZD 30,Registration number ADS 9115, And deliver the vehicle to plaintiff in Masvingo and/or alternatively pay the same amount in damages for repairs as may be ascertained and charged by the relevant service providers.
The defendants are ordered to pay all vehicle licensing-related arrears and penalties accrued after the month of March 2023 in relation to the plaintiff’s motor vehicle.
Cost are awarded to the plaintiff on an ordinary scale.
Aggrieved by that outcome, the appellants mounted the current appeal. The following were the (amended) grounds of appeal:
The court a quo erred and misdirected itself at law when it disregarded the second and third appellants plea of misjoinder notwithstanding that it was applicable in the proceedings a quo as there was no statutory bar to its application therein
Appellants are respectively aggrieved and assert that the court a quo erred and misdirected itself at law in making a finding of fact binding them to an alleged verbal undertaking to repair the respondent’s vehicle to the extent that the decision a quo is grossly unreasonable with defence of logic that no reasonable court under the circumstances would arrive at such a conclusion.
The court a quo erred and misdirected itself at law when it based its decisions of fact and conclusion of law on validity of both a written agreement and a verbal agreement of the same set of facts to the extent that inconsistences arrived at render the judgement grossly unreasonable in its defence of logic that n reasonable court under the under the circumstances would arrive at such a conclusion, more particularly following decisions;
that the written contract was not signed by the parties had probative value despite
the salient fact that upon a reasoning by inference on the evidence of witnesses there is confirmation that the parties were negotiating the terms and conditions to a valid written contract.
That the award of repair damages was inconsistent with provisions of the alleged
binding written contract, when of correctly applied do not impute liability on the appellants for repairs to the damaged vehicle.
That the award of judgment in the total sum of USD$ 13 500 was mathematically
wrong as no such quantum had been sought in the respondents pleadings a quo.
That the appellant remained liable on the basis of alleged arrear rentals effective 1st March 2023 when it was common cause that from the said date, the motor vehicle had broken down and grounded
The court a quo fell into error in respect of the decisions in paragraphs 3.1.1 to 3.1.4 above in its misapplication of the principles of corroboration and inconsistent witness’ testimony ;admission of inadmissible documentary evidence abandonment of a clear decision upon reasonable interference, granting a quantum of damages which was not sought ex –facie the pleadings and reliance on an in applicable pri……… of arrear rent to the extent that on correction of the aforesaid errors, no liability accrues to the appellants.
The appellants therefore sought an order setting aside the decision of the court a quo and substituting it with one dismissing the claims in their entirety.
Although the respondent is a duly r
During oral arguments in court, the respondent made a few concessions in respect of the issues raised by the appellants as appeal. Firstly, in respect of the first claim, he conceded, that this claim should not have succeeded in light of the fact that the agreement which supposedly…………it, was concluded between Madzanire and the appellants. He conceded that his own particulars of claim demonstrated that to the case.
Secondly, the respondent conceded that the second and third appellants in their personal capacity as such could have been held liable for the debts and obligations of the first appellant. Needless to say that this concession was bases on the doctrine of separate legal personality of corporations.
As far as the second claim is concerned, the respondent conceded that the order for the payment of “all motor vehicle licensing related arrears and penalties accrued after the month of March 2023 “ was unsustainable as there was no legal basis for such an order.+
Perhaps most importantly, the responded ultimately conceded that his contract with the first appellant was conceived to run from March 2023 to June 2023, a period of 4 months. He therefore agreed that any reference to “arrear rentals” after June 2023 was not only a misnomer but legally unsustainable. The concept of arrear rentals presuppose the existence of an extant rent agreement. Where a party continues to hold onto the subject of the agreement after expiry of the agreement, he is liable for damages see……………
As stated above, the respondent chose to seek recompense under the rubric of arrear rentals”…………. After the lapse of January 2023” (presumably he meant June 2023).
The respondent having thus conceded the impropriety of the globular award of US$ 13 500, ostensibly for the period stretching from March2023 to June 2024, the latter date being when summons were issue, that effectively left only two items up for …………….. in the appeal. Those are the order for the payment of US$3 600 subsumed under the globular order of US$13 500 and the order for the repair and delivery of the motor vehicle by the appellants to Masvingo.
Everything having been said and done, theses outstanding issues revolved, as we pointed out in order ex-tempore judgment, the question of whose responsibility it was to repair the motor vehicle in the event of its mechanical breakdown. Should it be the 1st appellant, then logically same would be liable not to repair it but also to pay for the period within which it lay idle following its breakdown.
In turn the question depended upon a construction of the oral contract between the parties and the value of the unsigned written contact. The first appellant unsuited that in terms of the verbal contract, it was the respondent’s responsibility to repair the motor vehicle and his failure to do so meant that he had no right to claim payment for the period it was not in use. It also insisted that the unsigned contract was of no probative value as it only encorupassed proposed but not agreed contractual terms.
The evidence
Three witnesses, inclusive of the respondent testified for the plaintiff’s case and two witnesses, i.e, the second and third appellants gave evidence for the defendants case. The following is a synopses of their respective account with regards to this all important issue.
The evidence of Tawonga Tawnda Musina (the respondent)
He testified that the contract in question was set to commence to run on 1 march 2023 on new terms and conditions. Most importantly he indicated that it was to be the responsibility of the appellant to repair the motor vehicle it broke down to ensure that it was fir for the purpose for which it was hired. According to him when the motor vehicle developed a gear box problem around 6 to 8 March 2023 a mechanic engaged by the appellant attended to it and dismantled the gearbox. However, according to him, the appellants did not honour their contractual obligation and became evasive and unco-operative. An employee under his motor vehicle had been virtually abandoned. Efforts to contact the appellant’s mechanic were fruitless.
In part the witness relied on the unsigned written contract which according to him captured the terms of what was agreed upon including the question of the repairing of the motor vehicle.
He would deny under cross-examination that after the motor vehicle had developed a fault he asked the appellant to assign the driver to check the problem with the motor vehicle and undertook to pay for the repair. He also denied that he failed to pay the mechanic leading the mechanic not to undertake one repairs. He reiterated …………. regard that the mechanic was engaged by appellants hence it was them who were obligated to pay him. He categorically denied being the one who hired the mechanic.
Brighton Madzanire
He is the person who introduced the appellant to the respondent. He did so after the appellants had indicated that they needed to hire another motor vehicle in addition to his own. Whereas his motor vehicle was deployed to Chimanimani that of the respondent was deployed to Chipinge. His evidence was basically that it was the responsibility of the appellants to repair the motor vehicle in the event of its break down.
He was pointedly asked during cross examination if he had received certain sums of money by the appellant as advance payments to get the motor vehicles road worthy and whether that did not demonstrate that it was the responsibility of the owners of the motor vehicles to repair them. In response the witness indicated that the appellants required the vehicles for their projects hence they would do anything to have the motor vehicles roadworthy.
Significantly, the witness conceded under cross examination that after he withdrew his own motor vehicle following a disagreement with the appellant he was not privy to the terms subsequently agreed upon between the parties on the hire of respondents motor vehicle.
Edis Zvavashe
He was the driver of the motor vehicle in question. He was initially under the employ of the previous witness Brighton Madzanire but was later engaged by the respondent.
While still under the employ of Madzanire, he referred to two occasions when the letter’s motor vehicle broke down and was fixed by a mechanic hired by the appellants.
Similarly, he indicated that when the respondent’s motor vehicle developed a gear box fault it was the appellants’ mechanic who dismounted it under the instruction of the third appellant. However according to him, the mechanic did not fix the gear box because the appellants did not pay him.
He however conceded under cross examination that he was not privy to the terms agreed upon by the parties with regards to the hire of the motor vehicle.
He however agreed that on one occasion he took the motor vehicles clutch plate to Masvingo under the instructions of the respondents. He however pointed out under cross examination that everything else related to that clutch plate was handled by the appellants including the mechanic who removed it and the purchase price of the clutch plate.
The Defendants case
Tawananyasha Madzore
He is the third appellant and identified himself in the proceedings a quo as the first appellants operations manager.
His position was that it was the responsibility of the respondent to repair the motor vehicle should it breakdown. He pointed out that at the inception of the first contract, i.e the one concluded between the appellant and Madzanire, the appellants made an advance payment to him (i.e Madzanire) to effect necessary repairs on both vehicles to make the roadworthy. The amounts so advanced, according to him were to be deducted from the agreed rental fee.
Similarly, so his evidence goes, when the appellants entered into the subsequent oral agreement with the respondent in March 2023, the appellants advances the sum of $300 to the respondent for the latter to effect necessary repairs to the motor vehicle to make it roadworthy.
However, according to him, no sooner had the oral agreement been entered into 6 March 2023, did the motor vehicle ……………another mechanical breakdown. The very next day he confirmed that the third witness for the plaintiff’s case, Edias Zvavashe was the driver of the motor vehicle.
He completely denied that it was a mechanic hired by the appellants who had attended to the motor vehicle. As a matter of fact the testified that in terms of their oral agreement, it was the responsibility of the respondent to have the motor vehicle fixed if it developed a mechanical fault while under the …………of the driver employed by the respondent.
During cross examination the witness confirmed that the first appellant,had at the material time a mechanic for the Chimanimani and Chipinge areas of its operations. He however denied that he had instructed that mechanic to attend to the respondent’s motor vehicle. He stated that at no stage did he authorize the first appellants’ mechanic to attend to the fault. According to him all he did was to ask the first appellants’ mechanic to get some other mechanic to look into problem.
As far as the written is concerned, it was the witness’s account that it was only a proposed contract which ultimately was not signed by the parties.
Blessed Kanyemba
This witness is the second appellant and the Managing Director of the first appellant. According to him the agreement between the first appellant and the respondent was that the respondent was responsible for fixing the motor vehicle should it develop a mechanical fault. For their part they would provide food for the driver and fuel. He stated that the very reason that the respondent was to provide the driver was that it was contemplated that he (i.e respondent) would engage someone trustworthy.
He further testified that when the appellants entered into the now disputed contract with the respondent, the latters motor vehicle had some problems which needed fixing. The appellants therefore advanced $300, to have it fixed, particularly its alternator. This was in March 2023. However, the motor vehicle ultimately did not serve its purpose because it developed a mechanical fault yet again. He indicated that at no time did he witness the first appellants’ mechanic fixing the respondents motor vehicle.
He further testified that when the appellants’ entered into the now disputed contract with the respondent, the latter’s motor vehicle had some problems which needed fixing. The appellants therefore advance $300, to have it fixed, particularly its alternator. This was in March 2023. However, the motor vehicle ultimately did not serve its purpose because it developed a mechanical fault yet again. He indicated that at no time did he witness the first appellants mechanic fixing the respondents’ motor vehicle.
Under cross examination he confirmed that it was agreed that the verbal agreement would be reduced to writing. However, it was his evidence that he never got to see a copy of the written contract. He was taken to task on why his evidence differed from that of Madzore in this respect, namely the knowledge of the contents of the unsigned contract. He would however insist that the only said the unsigned written contract when same was presented during the trial.
As far as he was concerned the unsigned contract was not binding upon the parties for the very reason that it was not binding upon the parties for the very reason that it was not signed to contrary, he opined, the oral contract was binding. He also pointed out that the oral contract was different from what was agreed upon on this vey important question of whose responsibility it was to fix the motor vehicle in the event of its break down.
As stated herein before the court a quo in its judgment dealt at considerable length with the question of the pre-requists for the validity of both written and oral contracts in general, referring as it did to several …….decided on the subject. It correctly pointed out that oral contracts are just as binding and enforceable as written ones.
The court a quo then dwelt at some length with question of corrobation in civil disputes. It found that there was a general absence of corrobation.
It conclude as follows;
“The principle of corroboration of evidence is curial in contract disputes, as the court must
be satisfied that the evidence presented by the parties is consistent and credible. The court
should consider whether the witnesses testimonies are aligned and whether there are material contradictions (Ndebele v Ndebele 2003(1) ZLR 615). The two defence witnesses coned not corroborate each other or material facts like knowledge of written terms. One denied it whilst the other admitted receiving, showing their evidence cannot be accepted as truthful.
Therefore find that the plaintiff has discharged the burden of proving the essentials elements of both contracts on a balance of probabilities. The defendants were responsible for vehicle agreements under the agreements”
It was essentially on the basis of this finding of lack of corrobation between the second and third appellants that the court a quo proceeded to grant both claims as aforesaid.
The error which the court a quo obviously fell into was to gloss over not only the seemingly contradicting terms of the oral agreement vis-à-vis the written one but also the fail to address the important question of the validity of an unsigned written contract. As a matter of fact had the court a quo properly applied its mind to the wording, of the written contract, which the respondent based his argument on it would not have arrived at the decision it did.
Clause 6.1 and 6.2 read as follows;
Loss, damage, theft or breakdown of plant and equipment
6.1 The hirer will be responsible for any loss, damage and theft of/to equipment in respect
of how the loss, damage or theft occurred (fair wear and tear excepted).
6.2 If there is a breakdown as failure of the equipment then the hirer shall return the
equipment to the owner at the hirer’s expense and the hirer shall not attempt to repair
that equipment.
Clause 7 on the other hand provides as follows;
Damage of property
7.1 If the hirer or the hirer’s personnel damage property whilst using the equipment, the
hirer must promptly
Make good the damage; and
Pay any compensation which the hirer is required to pay under any legal requirements.
We pointed out in our ex-tempore judgment as we reiterate herein that ordinarily an unsigned written contract is ordinarily not binding. It can however serve as an indicator of the intention of the parties and the general direction which the negotiation were heading. We however pointed out that it was disengeous of the respondent to rely on the terms above to demonstrate that the responsibility of repairing the motor vehicle was reposed on the appellants.
We also pointed out that the court a quo erred in dwelling on the relatively minor contradictions between the evidence of the seemed and third appellants and failed to appreciate that the onus to show that bit was the responsibility of the appellants to repair the motor vehicle in the event of a breakdown.
More importantly, however, clauses 6.1 and 6.2 make a clear distinction between Loss, damage ans theft on the one hand and breakdown on the other. These clause makes it abundantly clear that in the event of the former, the responsibility rested on the hirer (i.e appellants) and in the event of the latter (i.e breakdown) the responsibility was on the owner (i.e the responsibility).
Therefore, if the terms of the oral contract coincided with that of the unsigned written contract as the respondent insist they do, then it was undoubtedly his responsibility to take charge of the broken down motor vehicles. The appellant on the other hand was specifically precluded from attempting to fix the motor vehicle that effectively put paid to the dispute.
We also pointed out that if the above terms were the embodiment of the oral agreement as the respondent so stridently proclaimed both in the proceedings …………. And in this appeal, the appellants were contractually obligated to deliver, as per clause 2, the motor vehicle to the respondent in Masvingo.
It was on the basis of the foregoing that we gave the following order:
The appeal partially succeeds
The decision of the court a quo is hereby set aside and substituted with the following:
Claim 1 is hereby dismissed
Claimed 2 is dismissed in its’ entirely save the part requiring the first defendant to deliver the plaintiff’s motor vehicle; Nissan Caravan ZD 30, Registration Number ADS 9115, in Masvingo. To that end first defendant to deliver the said motor vehicle without any undue delay.
The Respondent to meet the costs of this appeal and the ordinary scale.
ZISENGWE J…………………………………………………………………
CHAREWA J agreed…………………………………………………………
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