Judgment No. HB 158/13
Case No. 487/12
KERRIES ENGINEERING (PVT) LTD
MAKOMO RESOURCES (PVT) LTD
IN THE HIGH COURT OF ZIMBABWE
BEFORE MAKONESE J
BULAWAYO 7 AND 28 NOVEMBER 2013
Mr Sibanda, for the Plaintiff
Mr E. Jori,for the Defendant
MAKONESE J: The plaintiff’s claim against the defendant is for the following relief:-
‘’(i) Payment of the sum of US 10 649 being the price agreed upon by the parties for the hire of the plaintiff’s 40 tonne mobile crane by the defendant to offload 4 containers including the cost of the crane moving to and from Bulawayo to defendant’s place of business at Hwange, which defendant confirmed by way of a purchase order number 1336 dated 24th January 2012, and which crane was supplied to defendant in terms of the contract, and despite demand refuses to pay the aforesaid sum of US$ 10 649.
(ii) Interest a temporae morae at the prescribed rate calculated from 7th February 2012, when defendant was placed in mora to date of final payment.
(iii) Costs of suit.’’
The defendant opposed the plaintiff’s claims and filed a plea in the following terms:-
‘’ Defendant admits entering into a contract with the plaintiff and further pleads as follows:-
2.1 That it was a term of the contract that Plaintiff’s crane would be available to offload Defendant’s cargo at the Defendant’s workshop in Hwange by 2: 00pm on Wednesday the 25th January 2012.
2.2 That time was of the essence as the transporter of Defendant’s cargo was going to levy charges for delays occasioned by the defendant in unloading the cargo or if the delay was unreasonable, to return with the cargo to the source.
2.3 That, in breach of the term aforesaid, plaintiff’s crane only arrived at the defendant’s mine on Thursday 26th January 2012.
2.4 That prior to arrival of plaintiff’s crane, in order to mitigate its damages, Defendant accepted the breach and concluded a contract with Hwange Colliery Company around 4:00 pm on Wednesday 25th January 2012 for the hiring of the alternative crane.
3. Defendant admits refusing to comply with the plaintiff’s demand as the payment demanded was not due in consequence of plaintiff’s breach as aforesaid.
The issues for determination by the court are relatively narrow and are as set out below:
1. Was it an essential term of the contract that Plaintiff’s crane would be available to offload Defendant’s cargo at Defendant’s workshop in Hwange by 2pm, Wednesday, 25th January 2012?
2. Was the arrival of Plaintiff’s crane at Defendant’s mine on Thursday, 26th January 2012 a breach of the contract?
3. Did Defendant enter into a contract with Hwange Colliery Company on Wednesday 25th January 2012, for hire of another crane, in order to mitigate its damages?
4. Is Plaintiff entitled to claim $10 649-00 from Defendant?
Most of the facts in this matter are common cause, or at least beyond dispute. There is agreement by both parties that on the 24th January 2012 defendant based in Hwange through the agency of a third party by the name Emmanuel contracted with the plaintiff (based in Bulawayo) for the hire of a 40 tonne crane to offload certain containers in Hwange. The parties negotiated the contract price for the work and eventually settled for US$ 10 649, representing the cost of mobilising the crane from Bulawayo to Hwange and a daily rate of US$2 994. The crane did arrive at Hwange on the morning of the 26th January 2012 but did not do any work as the defendants had already secured and hired an alternative crane from Hwange Colliery Company at a much lower rate of $1800. The plaintiff insists that it made the crane available and incurred expenses in mobilising the crane and driving the said crane all the way from Bulawayo to Hwange and back.
THE PLAINTIFF’S CASE
Donovan Jones is the plaintiff’s Managing Director. He testified on behalf of the plaintiff. He explained that on the morning of the 24th January 2012 one Emmanuel and Sam Omar visited his workplace at Bulawayo. They indicated that we are acting for and on behalf of Victor Mutokonyi of the Defendant company. They intended to hire a crane from the plaintiff. They had a low-bed trailer ready to transport the crane to Hwange that same day. Jones advised Emmanuel and his colleague that it was necessary to prepare a formal contract with the defendant setting out the terms and conditions of the crane hire. Jones asked to speak directly to Victor Mutokonyi and the two spoke on the phone. Jones informed Mutokonyi that they needed a 40 tonne crane for the kind of containers they wanted to offload. Jones could not finalise the transaction with Mutokonyi who referred him to one Hennie Diedricks Eventually Jones and Diedricks agreed that the crane would be driven at the very latest the following morning around 5am and would possibly arrive at Hwange sometime in the afternoon. It is not disputed that Diedricks wanted the crane urgently and even tried to persuade Jones to cause the crane to be driven overnight to Hwange. Jones flatly refused insisting that the crane could not be driven during the night. From the evidence of Jones it emerged that there were various logistical problems connected with the movement of the crane to Hwange. The following is a summary of the problems highlighted by Jones:-
(a) the plaintiff was concerned that they had never driven that type of crane over long distances (It had never been driven more that 40km outside Bulawayo)
(b) The plaintiff had no previous experience of driving the crane over long distances.
(c) The plaintiff did not know how long it would take to drive the crane to Hwange.
(d) The crane could only be driven during day time.
(e) They could not be sure what time the crane would arrive at Hwange.
Donovan Jones and Hennie Diedricks agreed that the crane would leave
Bulawayo the following morning and it was expected in Hwange on the afternoon of the 25th
January 2012. The defendant forwarded a Purchaser Order to the plaintiff that same day via e-
mail the 24th January 2012 and payment was to be made to the plaintiff as soon
as the crane had arrived at Hwange and before the work could be undertaken. Jones said that
he was out of his office the rest of the day on the 25th January 2012 and that he did not have
his mobile phone whose number he had used to communicate with Mutokonyi and Diedricks.
As things turned out the crane driver could not make it to Hwange that same day the 25th
January. He was forced to put up at Dete because it had become dark and he needed to top up
his engine oil. Jones said that he communicated with Mutokonyi on the night of the 25th
January. Mutokonyi expressed disappointment and told Jones that they had let him down.
The mobile communication between Jones and Mutokonyi was interrupted by a failure in the
network signal. Jones testified that on the morning of the 26th January 2012 around 10 am he
received a call from Mutokonyi who told him that the contract had been cancelled because the
defendant had secured a crane from elsewhere. Jones advised Mutokonyi that the defendant
still had to pay for the crane. Mutokonyi referred Jones to Hennie who stated that he was not
going to pay for the crane but instead suggested that Jones could leave the crane in Hwange for
a week and attend to other work to recover the expenses. This was not acceptable to the
plaintiff and the crane was subsequently driven back to Bulawayo. At that stage it was clear
that the deal had turned sour.
Joneswas extensively cross-examined but he maintained his version of events. He specifically refused any suggestion that he gave an actual arrival time for the crane. He stated that there was no way he could give an undertaking to have the crane by a specific time because he told Hennie that he had no previous experience of driving the crane over a long distance.
I find the version of events as narrated by Jones to be fairly clear and straight forward.
He struck as a honest and credible witness. His account is believable. The court accepts his testimony. There are no material contradictions in his evidence.
The second witness for the plaintiff was DAVINA PORTER. She is the personal assistant and secretary to Donovan Jones. Her evidence corroborated the testimony of Jones in all material respects. She confirmed the arrival of Emmanuel and Sam Omar at the plaintiff’s premises on the 24th January 2012. She further confirmed that she sent an e-mail to Mutokonyi on the 25th January 2012 demanding that payment for the crane be effected before commencement of the work. She went on to testify that on the 25th January 2012, Mutokonyi called her on her mobile number seeking to establish the following:
(a) whether the crane had left for Hwange that morning.
(b) where the crane was
(c) the crane’s estimated arrival time at Hwange.
Ms Porter says she advised Mutokonyi that the crane had left Bulawayo but she was not sure of it’s precise location. She says she had phoned the crane driver who said he was on his way but the journey was taking longer than expected. Under cross examination Ms Porter maintained that she advised Mutokonyi that the crane was on its way to Hwange and that the defendant never indicated any intention to cancel the contract.
Ms Porter’s evidence was consistent, credible and reliable in all material respects. Her evidence reads well and is not tainted with any exaggeration.
The last witness for the plaintiff was the crane driver NGWABI GUMBO. He indicated that he left Bulawayo at around 5 am on his way to Hwange. He had to stop every 80 km to 100 km to rest the crane’s tyres. His average speed was 30 -50 km per hour on open road but went as slow as 12 km per hour on inclines. He arrived at Dete on the evening of the 25th January 2012 and since he could not drive at night he slept there. On the morning of the 26th January 2012 whilst he was looking for engine oil he received a call from Victor Mutokonyi who asked him where he was. He told him he was at Dete and as soon as he procured oil he would be on his way. Victor did not advise him to return to Bulawayo neither did he advise him that the crane was no longer required so he proceeded to Hwange. Upon arrival at Hwange the crane driver was told that he had been late and another crane had been hired. He stated that the alternative crane had not started off-loading when he arrived at Hwange because Victor came and asked him for slings since the crane they had hired did not have slings. The witness said he refused to give them the slings for fear that they could break. The crane driver was clearly an experienced man who had started operating cranes in 1991. His evidence was easy to follow and he simply narrated what transpired. I have no hesitation in accepting his evidence as truthful.
THE DEFENDANT’S CASE
The defendant led viva voce evidence from Victor Mutokonyi. He is employed by the defendant as the Transport and Logistics Manager. He took up employment with the defendant company in October 2010. He confirmed that he sent Emmanuel whom he referred to as his transport contractor to look for a crane. The defendant required the crane for the purposes of off-loading 4 X 40 feet containers from certain haulage trucks. The owners of the haulage trucks were threatening to return with the said containers if they were not off-loaded by the afternoon of the 25th January 2012. Victor testified that he commenced negotiations with Jones on the phone but the final contractual terms and conditions were concluded by Jones and Hennie. His understanding was that the plaintiff had agreed to have the crane available at Hwange by 3pm on the 25th January 2012. He says the telephone conversation between Jones and Hennie was conducted in his presence and hearing although he could only confirm one side of the story as related by Hennie. Victor testified that during the morning of the 25th January 2012 he had phoned Jones on his mobile phone several times and Jones was not picking up the phone. He says that what he quickly concluded was that he was dealing with fraudsters. Victor confirms that he had a telephone discussion with Ms Porter on the morning of the 25th January 2012 but says Ms Porter did not confirm that the crane had left Bulawayo. Victor’s testimony on this aspect contradicted the contents of the Defendant’s Synopsy of Evidence which suggested that Victor had failed to locate his Ms Porter on her mobile phone. It is therefore clear that Victor could have told Ms Porter that the contract was being terminated if that was defendant’s intention because he was in communication with Ms Porter. Victor confirmed that he spoke to the crane driver on the morning of the 26th January 2012. One wonders why Victor did not advise the crane driver not to bother looking for engine oil and to simply return to Bulawayo. The suggestion by Victor that he informed the crane driver to return to Bulawayo was evidently an afterthought. This view is strengthened by the fact that upon arrival at Hwange Victor told the crane driver to park the crane whilst he spoke to plaintiff’s employers. If Victor had told him not to proceed with his journey he would have confronted him at once and asked him why he had come to Hwange.
The defendant’s version of events does not read well and there are material inconsistencies. Victor could not be certain of the final terms as agreed between Hennie and Jones. Jones must be believed by the court when he stated that he could not give an exact time of arrival because the crane had never been driven for long distances. This information was communicated to the defendant.
The evidence of Victor is not supported by the facts. If the plaintiff could not be certain how long the crane would take to arrive at Hwange there is no conceivable reason why the plaintiff would have undertaken to be at Hwange by 3 pm on the 25th January 2012. By his own admission, Victor said that when he resolved to enter into a contract for an alternative crane with Hwange Colliery Company on the 25th January 2012 he had not terminated his contract with the plaintiff. Victor failed to explain why he did not use the other available means of communication namely, the plaintiff’s landline or e-mail.
I found the evidence of Victor to be unreliable. He did not impress as an honest witness. He was not comfortable on the witness stand. He was very evasive and the court was left without any doubt that the defendant did not negotiate the contact in good faith. When asked to explain why the defendant had chosen to enter into a contract for an alternative crane before terminating the contract with the plaintiff, Victor stated that he found this cheaper as the Colliery crane would cost US$1 800. The inescapable conclusion is that the defendant deliberately refrained from cancelling the contract with the plaintiff to keep both canes in their sights and control. They chose to take the crane that arrived first and that became cheaper for them in the end.
ANALYSIS OF THE EVIDENCE
1. Whether it was an essential term of the contract that plaintiff’s crane would be available to offload defendant’s cargo at defendant’s workshop in Hwange by 2 pm, Wednesday 25th January 2012.
The onus lay on the defendant to prove this issue. The defendant’s witness Victor
revealed to the court that he had told Jones that ‘’they wanted the crane as soon as possible’’. These were Victor’s exact words and it seems from all the surrounding circumstances related to the transaction that Jones could not have and did not give the defendant a specific arrival time for the crane.
I am satisfied that it was not established that the crane would arrive at 2pm on the 25th January 2012. In any event Jones told both Victor and Hennie that they had never driven the crane for long distances and did not know how long the journey would take. If time was so critical to the defendant it should have opted for an option that had definite certainty with regards time. I therefore make a finding that the defendant failed to establish that time was of the essence and that the parties did not agree that the crane would arrive at Hwange by 2pm on the 25th January 2012 as alleged by the defendant.
A J KERR, The Principles of the Law of Contract, 4th Edition at page 451 states the position as follows:
‘’It is ascertainable if performance is to take place ‘’immediately’’ or ‘’as soon as possible,’’ is , if one is not talking about contracts such as some cash sales over the counter of a shop, a requirement for performance within a short period which, in the circumstances is reasonable’’
In casu it cannot be said that the arrival of the plaintiff’s crane at Hwange on the 26th January 2012, in the morning was unreasonable regard being had to all the concerns the defendant had been alerted by the plaintiff relating to the movement of the crane for long distances.
The defendant therefore failed to discharge the onus on the above issue.
2. Was the arrival of plaintiff’s crane at defendant’s mine on Thursday, 26th January 2012 a breach of the contract.
The position is now settled in our law that:
‘’Notice of cancellation must be clear and unequivocal and takes effect from the time it is communicated to the other party’’
See R H CHRISTIE, The Law of contract in South Africa, 3rd Edition page 597
See also Du Plessis v Government of the Republic of Namibia 1995 (1) SA 603 at 605 E
A notice of intention to cancel must be such that the other party is or ought to be aware of its nature, but it is not necessary to use the word ‘’cancellation’’. The intention to cancel may be made sufficiently clear in other ways – AJ KERR, (supra) at page 462
On the evidence presented by the defendants they clearly did not take any cognisable steps to cancel the contract. Indeed, they permitted the crane driver to drive all the way from Bulawayo to Hwange without alerting the plaintiff that they had an intention to resile from the contract.
I am satisfied, that on the evidence led there is no basis to find that the arrival of the crane on the morning of the 26th January 2012 at Hwange amounted to a breach of the contract.
3. Whether defendant entered into a contract with Hwange Colliery Company on Wednesday 25th January 2012, for hire of another crane in order to mitigate the damages
The facts show that when the plaintiff’s crane driver arrived at Hwange, the alternative crane had not commenced work. The colliery crane only commenced work on the 26th January 2012 when the plaintiff’s driver was already on site. The defendant opted for the Colliery crane because it turned out to be cheaper. I am persuaded to agree with Jones when he testified that the Defendant was playing both the plaintiff and the Colliery Company. He chose the crane that arrived on site first and that turned out to be much cheaper. I, therefore reject the suggestion that the defendant hired an alternative crane to mitigate its loss. They hired the alternative crane with a settled intention to avoid paying for the charges raised by the plaintiff.
4. Is plaintiff entitled to claim US$ 10 649 from the defendant?
I am of the firm view that defendant’s evidence that it tried and failed to contact plaintiff during the course of the day on the 25th January 2012 is inadequate to absolve the defendant from having to effectively communicate its intension to resile from the agreement. Apart from the attempt to contact Jones on his mobile phonethe defendant had access to other cellphone numbers, landline numbers and e-mail. These numbers are all contained on one of the e-mails sent to the defendant by the plaintiff.
I am, therefore satisfied that plaintiff is entitled to the relief it seeks, as it effectively kept its side of the agreement and as a consequence incurred financial losses. They provided the crane within a reasonable time as contemplated by the parties. They are entitled to payment in terms of the contract.
In the result, I make the following order:
(a) defendant is hereby ordered to pay the plaintiff the sum of US$10 649 together with interest a temporae morae at the prescribed rate from the 7th February 2012 to date of final payment.
(b) Costs of suit.
James, Moyo-Majwabu and Nyoni,Plaintiff’s Legal Practitioners
Messrs Wintertons c/o Majoko and Majoko,Defendant’s Legal Practitioners