Blumo Trading (Private) Limited v Nelmah Milling Company (Private) Limited and Nelson Mahupete

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BLUMO TRADING (PRIVATE) LIMITED
versus
NELMAH MILLING COMPANY (PRIVATE) LIMITED
and
NELSON MAHUPETE

HIGH COURT OF ZIMBABWE
PATEL J

Civil Trial

HARARE, 26 October to 2 November 2010 and 15 February 2011

R. Theron, for the plaintiff
G. Macheyo, for the defendants



       PATEL J:     The plaintiff in this matter claims the sum of

US$24,100 as special damages, being loss of profits arising from an

alleged breach of contract by the defendants. It also claims restitution of

US$10,000 paid as a deposit to the 1 st defendant under the same

contract. The defendants deny any breach on their part and allege that it

was in fact the plaintiff that acted in breach of contract.


Evidence for the Plaintiff

       Wayne Victor Moss is the Chief Executive Officer of the plaintiff

company which, together with CCC Pigs (Pvt) Ltd, is a subsidiary of

Colcom Foods Limited. He testified as follows. On the 18 th of January

2010, he signed the Agreement in casu with the defendants. In essence,

the Agreement was for the sale of 500 tons of maize (at US$235 per ton)

for a total purchase price of US$117,500. The maize was to be sourced by

the 1st defendant from the Grain Marketing Board (the GMB). On the

same date, the 2nd defendant signed a contract of suretyship
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guaranteeing the delivery of maize in terms of the Agreement. He said

that the 1st defendant had a credit facility with the GMB for 2,000 tons.

        On the 21st of January, he withdrew a total of US$100,000 from the

bank. He paid the agreed deposit of US$10,000 to the 2 nd defendant and

then proceeded with him to the GMB with US$90,000 in cash. The GMB

was not aware of the transaction and had no release orders in the name

of the 1st defendant. He was told by the GMB’s Credit Controller

(Mawanza) that he could obtain only 300 tons of maize at a higher price

of US$300 per ton if he paid the US$90,000 into the 1 st defendant’s

account with the GMB. This was because the 1 st defendant’s facility was

for a maximum of 300 tons and because its account with the GMB was in

debit at that time. The 2nd defendant then undertook to resolve the

matter the following day. The witness subsequently visited the GMB on

four consecutive days and was given the same explanations by Mawanza.

He then met the GMB Marketing Manager (Mandizvidza) who cautioned

him against dealing with the 1st defendant. Mandizvidza later furnished a

letter confirming the 1st defendant’s credit standing with the GMB at the

relevant time.

        The plaintiff did not proceed with the transaction as it became

evident that the 1st defendant did not have the capacity to deliver as

agreed. The Agreement was cancelled on the 2 nd of February and this was

confirmed by the plaintiff’s lawyers in their letter of the 4 th of March to

the 1st defendant. The defendants offered to restitute the US$10,000

deposit in January and October 2010, but have not made any payment to

date.

        The plaintiff had a contract with CCC Pigs, signed immediately after

the Agreement with the defendants, for the onward supply of 500 tons of

maize at a price of US$290 per ton. This represented a profit margin of
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US$55 per ton equating to a total profit of US$22500. The plaintiff had

arranged for the transportation of the maize at a cost of US$200 per

truck. In order to meet its contract with CCC Pigs the plaintiff had to

order 508 tons of maize from South Africa at a price of US$317 per ton.

        Under cross-examination, the witness conceded that the deposit of

US$10,000 was not paid on signature of the Agreement but on the 21 st of

January and that the sum of US$90,000 was not deposited into the GMB’s

bank account as agreed. The payments were a few days late and not

strictly in accordance with the terms of the Agreement. However, this was

not unreasonable in the circumstances of the transaction and the 2 nd

defendant had accepted the delays. Moreover, the witness did not have

the GMB’s bank account details.

        Odson Dzanga is the plaintiff’s Financial Manager. He accompanied

Moss to the GMB on the 22 nd of January 2010. He confirmed that the GMB

would only have released 300 tons of maize upon payment of the

US$90,000 in cash. He added that the 1 st defendant’s account with the

GMB was in arrears standing at about US$54,000 as at the 8 th of January

2010.

        Emson Mandizvidza has been employed by the GMB as its

Marketing Manager since 2003. His duties include checking the credit

facilities of customers and, in conjunction with the Credit Controller,

authorising release orders on credit sales. He corroborated the testimony

of Moss and Dzanga regarding their visit to the GMB on the 22 nd of

January and his discussion with Moss in the presence of the 2 nd

defendant. He also confirmed the contents of his letter of the 13 th of May

2010 concerning GMB prices and the 1 st defendant’s credit status.

Between the 18th and 22nd of January 2010, the 1 st defendant’s credit

facility was on hold because of its outstanding arrears of US$54,000 and,
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in any event, that facility did not enable it to buy 500 tons of maize from

the GMB. At that time, the 1 st defendant’s credit facility was limited to 300

tons per month. In practice, a credit customer wishing to increase its

credit limit would have to apply in writing and the application would then

be assessed by the Risk Management Committee (the RMC) which meets

once a week. In December 2009, the 1 st defendant applied to increase its

credit limit to 2000 tons per month. This application was turned down by

the RMC before the 18th of January. As at that date, there was no

application from the 1st defendant to increase its credit limit. Even if it

had lodged an application, this would only have been processed the

following week and it would not have been possible to approve any

increase on the 22 nd of January. The GMB sued the 1 st defendant for the

outstanding US$54,000 in April 2010 in Case No. HC 2191/10. At the

present time, the 1st defendant is no longer a credit client of the GMB.

      Wanda van den Bergh is a grain broker. Her evidence was that she

introduced Moss to the 2nd defendant in January 2010. The agreement

between them was for the 1st defendant to supply maize to the plaintiff

for onward sale to CCC Pigs. She was not aware of the 1 st defendant’s

credit facility with the GMB.


Evidence for the Defendants

      Nelson Mahupete, the 2nd defendant, is the Chairman and

Managing Director of the 1st defendant. His evidence was that in

December 2009 he applied to the GMB’s Credit Controllers (Mawanza and

Pfumbidza) to increase the 1st defendant’s credit facility from 300 tons to

2,000 tons per month. They agreed to increase the facility to 1,500 tons,

provided the outstanding debt of US$54,000 due to the GMB was cleared.

After the Agreement was concluded with the plaintiff, Moss only paid the
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deposit of US$10,000 after 3 days. Moreover, he did not effect transfer of

the US$90,000 into the GMB’s account but arrived at the GMB offices with

the cash equivalent. He then declined to pay that amount towards the 1 st

defendant’s account with the GMB. If he had done so, the 1 st defendant

would have fulfilled the contract to deliver 500 tons of maize. As regards

the debt of US$54,000 owed to the GMB, the 1 st defendant has already

paid US$33,250 towards this and the balance is to be cleared as per an

agreed payment plan.

      Under cross-examination, the 2nd defendant conceded that the 500

tons of maize in question was for pig feed but denied that it was intended

for CCC Pigs. He disputed the averment to that effect made by

Mandizvidza in his statement to the CID Serious Fraud Squad on the 12 th

of February 2010. As regards the release orders for 500 tons of maize, he

admitted that he did not have them in his possession on signature of the

Agreement on the 18th of January or at the GMB offices on the 21 st of

January. He has been charged with fraud in respect of the present

contract. The criminal trial has commenced and is yet to be completed.

      Vavavirayi Mawanza has been the GMB’s Credit Controller since

January 1999. His evidence was that GMB release orders are first signed

by him and then by the Marketing Manager before they are issued. In

August 2009, the 1st defendant applied for a credit facility and in

September it was granted a facility for 150 tons per fortnight or 300 tons

per month. In December 2009, the GMB released a total of 268 tons of

maize to the 1st defendant. The latter then applied for a facility of 2,000

tons per month. On the 18 th or 19th of December, he verbally advised the

2nd defendant that he could only approve a facility of 1,500 tons on

condition that the 1st defendant paid an additional US$200,000 towards

its account with the GMB. As at the 8th of January 2010, the 1st defendant’s
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account was in debit of about US$54,000. On the 22 nd of January 2010,

Moss came to the GMB wanting to pay US$90,000 into the 1 st defendant’s

account. The witness refused his request and said that the 1 st defendant

should make the payment itself. Moreover, it would not have been

possible for Moss to have paid the GMB through its own bank account. In

his statement to the CID Serious Fraud Squad dated the 15 th of February

2010, he declared that “The accused (2 nd defendant) has a buying limit of

150 tonnes at a time”. There was no mention of an increased limit of

1,500 tons having been conditionally approved.

       Tatenda Pfumbidza is an Assistant Credit Controller with the GMB.

He confirmed that an existing credit client must apply in writing for any

increase in its credit facility and that, if its application is approved, the

Marketing Department and the client must be advised of the increased

limit in writing. When the 1st defendant applied for an increased limit of

2000 tons in December 2000, it was told to make an additional payment

of “more than US$100,000” towards its account with the GMB. This

application was not approved because the additional payment was not

made. In February 2010, the 2 nd defendant approached him for a credit

reference. He then wrote two reference letters dated the 5 th and 8th of

February. He conceded that the letters were silent as to the conditions of

release and the tonnage that could be released to the 1 st defendant.

Moreover, he accepted that the letters were not addressed to the plaintiff

or to Moss and that they were written after the events giving rise to the

plaintiff’s action in casu.


Breach of Agreement by Plaintiff

       It is a fundamental premise of every contract that both parties will

duly carry out their respective obligations. See Green v Lutz 1966 RLR 633;
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ESE Financial Services (Pty) Ltd v Cramer 1975 (2) SA 805 (C) at 808-809. As is

explained by Christie: Business Law in Zimbabwe at pp. 106 & 119:

             “There is a presumption that in every bilateral or
      synallagmatic contract, i.e. one in which each party undertakes
      obligations towards the other, the common intention is that
      neither should be entitled to enforce the contract unless he has
      performed or is ready to perform his own obligations. …
             …Conversely, a party who has caused the other to commit a
      breach cannot found a claim on the breach ….”

      In terms of clause 3 of the Agreement in this case, the plaintiff

undertook to pay a deposit of US$100,000 “upon the signing of this

agreement”, US$90,000 into the bank account of the GMB and US$10,000

in cash to the defendants. It is common cause that Moss did not pay the

deposit of US$10,000 and did not transfer the sum of US$90,000 into the

GMB’s bank account upon signature of the Agreement. Instead, he paid

the US$10,000 deposit only on the 21 st of January and on the same date

tendered US$90,000 in cash to the GMB.

      It is therefore clear that the plaintiff did not perform its obligations

strictly in accordance with clause 3 of the Agreement. However, it is

equally clear that the defendants accepted the late payment of the

US$10,000 and, furthermore, they actively attempted to pressurise Moss

to pay the US$90,000 in cash to the GMB, particularly as it was not

practically possible for him to make that payment into the GMB’s bank

account. At that stage, he was obviously willing and able to make both

payments in performance of the plaintiff’s obligations. Given the attitude

and conduct of the parties, the delay of 3 days in tendering the payments

and the departure in the mode of payment to the GMB were not material

to the plaintiff’s undertakings under the Agreement. And although the

plaintiff did not strictly comply with its payment obligations, such non-

compliance was accepted by the defendants. In short, they positively
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acquiesced in that non-compliance and are therefore estopped from

raising it as a defence to the plaintiff’s claim.


Breach of Agreement by Defendants

       Turning to the defendants’ undertakings, these were spelt out in

clauses 4 to 7 of the Agreement. Firstly, once the plaintiff had paid the

deposit, the 1st defendant was obliged under clause 4 to cede its release

orders for 500 tons of maize “which it has already received or will shortly

receive from GMB”. Secondly, after paying the deposit, the plaintiff was

authorised by clause 5 “to immediately upload the maize from GMB”.

Thirdly, by virtue of clause 6.1, the 1st defendant warranted that “it does

currently, or it will by Tuesday 19 January 2010, have a release order or

release orders in its name from GMB for 500 tons of maize”. Finally,

clause 7.1 entitled the plaintiff to cancel the contract “should the seller

not have a release offer [sic] or release offers [sic] in its name by Friday 22

January 2010”.

       It is submitted for the defendants that the undertakings stipulated

in the Agreement are dubious in their meaning. Consequently, inasmuch

as the Agreement was drafted by the plaintiff’s lawyers, its provisions

must be construed strictly as against the plaintiff on the one hand and

leniently as against the defendants on the other. While this may be the

general purport of the so-called contra proferentem or contra stipulatorem

rule of interpretation, it is trite that this rule may only be invoked where

the provision to be applied is ambiguous in its meaning or effect. See

Christie, op.cit., at pp. 72 & 238.

       In the instant case, I do not perceive any such ambiguity in the

terms of the Agreement. In my view, the combined effect of clauses 4 to 7

of the Agreement was this: the defendants warranted that they either
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had the requisite release orders or would have them in their possession

by the 19th of January; they undertook to cede the release orders to the

plaintiff upon payment of the stipulated deposit; the plaintiff would then

take delivery of 500 tons of maize; and, in the event that the defendants

did not have the release orders by the 22 nd of January at the latest, the

plaintiff was entitled to cancel the Agreement.

       The test for determining the repudiation of a contract by way of

anticipatory breach was expounded by Nienebar JA in Datacolor

International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (1) SA 581 (A) at 591, as

follows:

              “…the emphasis is not on the repudiating party’s state of
       mind, on what he subjectively intended, but on what someone in
       the position of the innocent party would think he intended to do;
       repudiation is accordingly not a matter of intention, it is a matter
       of perception. The perception is that of a reasonable person placed
       in the position of the aggrieved party. The test is whether such a
       notional reasonable person would conclude that proper
       performance (in accordance with a true interpretation of the
       agreement) will not be forthcoming. The inferred intention
       accordingly serves as the criterion for determining the nature of
       the threatened actual breach.
              …due to the co-contractant’s repudiation, the innocent
       contractant is excused from any steps that he must take in
       preparation for his own performance …. In these circumstances
       the purchaser will not fall into mora by failing to tender
       performance …as long as he signifies his willingness to perform.”

       Similarly, Lord Wright, cited with approval in Chinyerere v Fraser

N.O. 1994 (2) ZLR 234 (H) at 250, observed as follows in Ross T. Smyth & Co.

Ltd v T.D. Bailey, Son & Co. [1940] 3 All ER 60 (HL) at 73:

               “I do not say that it is necessary to show that the party
       alleged to have repudiated should have an actual intention not to
       fulfil the contract. He may intend in fact to fulfil it, but may be
       determined to do so only in a manner substantially inconsistent
       with his obligations, and in no other way.”
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       The evidence before the Court shows that the 1 st defendant did not

have the requisite release orders from the GMB, either by the 19 th or the

22nd of January, nor did it hold a credit facility with the GMB for 500 tons

of maize at that time. Conversely, on the 21 st of January, the plaintiff had

paid the cash deposit of US$10,000 to the defendants and was prepared

to pay the remaining deposit of $90,000 in cash to the GMB. It follows

that the defendants were patently in breach of the warranty contained in

clause 6.1 and, because of their evident inability to fulfil the contract

timeously, they were in anticipatory breach of their obligations under

clauses 4 and 5 to cede the release orders and deliver 500 tons of maize.

Consequently, the plaintiff was entitled to withhold any further payment

under the Agreement.


Cancellation of Agreement

       At common law, an anticipatory breach ordinarily entitles the

innocent contractant to cancel the contract. As is observed by Kerr: The

Principles of Contract Law (6th ed.) at p. 592:

              “…repudiation before the due date for performance by a
       party prospectively in default constitutes anticipatory breach of
       contract on which the aggrieved party may take action if he so
       elects.”

       In the instant case, clause 7.1 of the Agreement expressly allowed

the plaintiff to cancel the contract in the event of the 1 st defendant’s

failure to have the requisite release orders in its name by the 22 nd of

January 2010. Thus, as at that date, the plaintiff was entitled to cancel on

two separate grounds, viz. the defendants’ actual breach of warranty as

well as their anticipated failure to cede the release orders and deliver the

stipulated tonnage of maize in breach of clauses 4 and 5 of the
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Agreement. In the event, the plaintiff lawfully cancelled the Agreement

on the 2nd of February 2010, as was confirmed by its lawyers in their letter

of the 4th of March 2010 to the defendants.


Claim for Special Damages

       Clause 7 of the Agreement stipulates the plaintiff’s remedies in the

event of cancellation. Both Ms. Theron and Mr. Macheyo have opted not to

proffer any enlightenment on what was intended by the parties,

presumably because that intention is not easily discernible from the

vague and seemingly contradictory elections set out in this clause. It then

becomes necessary to consider the plaintiff’s rights and remedies at

common law.

       It is trite that an aggrieved contractant is entitled to claim damages

arising from his co-contractant’s breach of contract, including any breach

of warranty. As was stated in Evans & Plows v Willis & Co. 1923 CPD 496 at

502:

              “In our law if an express warranty …has been given by the
       seller and this turns out to be untrue an action for damages for
       breach of contract lies.”

       The plaintiff in casu has elected not to claim the expenses actually

incurred by it in replacing the 500 tons of maize at US$317 per ton from

the alternative source in South Africa. The difference in prices alone

would derive a net loss of US158,500 less US$117,500 amounting to US$

41,000. Instead, the plaintiff claims a lesser sum of US$24,100 as special

damages, based on its anticipated loss of profits consequential upon the

defendants’ breach of contract. This amount is calculated as follows: the

gross profit of US$145,000 that the plaintiff would have received from its

contract with CCC Pigs less US$120,900, being the contract price of
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US$117,500 under the Agreement plus the notional cost of transport

totalling US$3,400.

      In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) at 344,

cited with approval in Collective Self Finance Scheme v Asharia 2000 (1) ZLR

472 (S) at 475, Gubbay JA described special damages as follows:

             “Special damages …are ordinarily regarded in law as being
      too remote to be recoverable unless, in the special circumstances
      attending the conclusion of the contract, it can be deduced that the
      parties actually or presumptively foresaw that they would probably
      flow from its breach (and thus, that it was within their
      contemplation) ….To ascertain what the parties actually
      contemplated , or may be supposed to have contemplated, it is of
      assistance to look to: (a) the subject matter and terms of the
      contract itself; (b) the special circumstances known to both parties
      at the time they contracted.”

      The evidence in this case shows that the defendants were aware of

the plaintiff’s onward contract with CCC Pigs and the contemplated profit

that the plaintiff would accrue from that contract. They therefore

foresaw, either actually or presumptively, that the plaintiff would suffer

loss of profits in the event of their breaching their undertakings in terms

of the Agreement. They are accordingly liable for the special damages

claimed by the plaintiff.


Claim for Restitution

      In the event of non-delivery of the goods sold under a contract, the

right of the aggrieved party to claim restitution from the defaulting party

is ordinarily unchallengeable. As was held by Korsah JA in Nissan

Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1997 (1) ZLR 569 (S) at 572-573:

             “Whether the wrongful act arises out of contract or tort,
      where there has been actual pecuniary loss which is capable of
      precise quantification, the rule which the law adopts is restitutio in
      integrum – the injured party is entitled to claim to be placed back in
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      the same position as he would have been in had it not been for the
      defendant’s wrongful act.”

      In the present matter, the plaintiff’s right to recover the deposit

paid in the event of cancellation is also affirmed in clause 7 of the

Agreement, notwithstanding the ambiguities in that clause that I have

earlier referred to. The evidence clearly shows that the plaintiff paid

US$10,000 as a deposit to the defendants and that the latter gave

nothing in return for that amount. Indeed, the defendants specifically

acknowledged their liability to refund the deposit in the subsequent

dealings between the parties and their respective lawyers. It follows that

there is no defence to the plaintiff’s right to restitution and that this claim

must also be upheld.


Suretyship and Joint and Several Liability

      The contract of suretyship attached to the Agreement, which

contract was admittedly signed by the 2 nd defendant, binds him “as surety

and co-principal debtor … for the due performance by [the 1 st defendant]

of all its obligations under the agreement”. Again, “in the event of [the 1 st

defendant] failing to perform any of its obligations under the said

agreement”, the 2nd defendant explicitly accepted “liability for the balance

of its indebtedness and for all interest, costs, damages, losses and

expenses which [the 1st defendant] might be liable for in terms of the said

agreement”.

      Having regard to these unambiguous provisions, I am unable to

comprehend why it is necessary to determine the 2 nd defendant’s status

as surety under the Agreement or the joint and several liability of both

defendants thereunder. It is undeniably clear that the 2nd defendant

stood as surety for the 1st defendant and thereby rendered himself liable
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for the full performance of the 1 st defendant’s obligations under the

Agreement. It is also unquestionable that the 1 st and 2nd defendants are

jointly and severally liable for the damages and legal costs incurred by

the plaintiff.


Costs

        As a rule, the courts are loath to accede to a prayer for an award of

costs beyond the ordinary scale. However, this rule may properly be

departed from where the unsuccessful party’s conduct has been

particularly unreasonable and reprehensible, for instance, by obstinately

refusing to resolve the dispute amicably and inexpensively. Such

vexatious conduct fully justifies an award of costs on a higher scale in

favour of the successful party. See Borrowdale Country Club v Murandu

1987 (2) ZLR 77 (H); Chioza v Sawyer 1997 (2) ZLR 178 (S); NUST v NUST

Academic Staff & Others 2006 (1) ZLR 107 (H).

        The evidence before the Court shows that this matter could and

should have been resolved in January or soon thereafter. It was obvious

at that stage that the defendants were unable to fulfil the terms of the

Agreement, largely because of their own default in sustaining their credit

account with the GMB. In light of their failure to deliver under the

Agreement, there should have been no question of their liability to

refund the deposit of US$10,000 to the plaintiff. Their exposure to an

additional claim for damages might also have been averted had they

restored that deposit or demonstrated their preparedness to restitute.

Their recalcitrance was simply designed to delay and frustrate the

plaintiff and compel it to seek recourse before this Court at considerable

legal expense. I am amply satisfied that they should recompense the

plaintiff through a punitive award of costs.
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Disposition

           Before spelling out the order of this Court, I am constrained to

register my deep concern about the quality of Mr. Macheyo’s legal

representation of the defendants. Quite apart from his unhelpful and

shabby performance in court, his Closing Submissions qualify as the most

appalling that I have seen hitherto. They comprise almost 20 pages of

ungrammatical and repetitive drivel, punctuated with occasional forays

into the irrelevant and riddled with patent falsities as to the actual

testimony presented at the trial. They are as singularly unpersuasive as

they are obtusely unhelpful to the Court. For his gross disservice to his

clients, Mr. Macheyo ought to be penalised with an award of costs on a

higher scale de bonis propriis. However, I am reluctant to make such an

award because it has not been sought by any of the parties. What I will

do instead is to direct the Registrar to forward a copy of his submissions

to the Secretary of the Law Society for its Council to be regaled by their

content and to consider such disciplinary measures as it deems fit in the

circumstances.

           In the result, it is ordered that judgment be entered in favour of

the plaintiff as against the defendants jointly and severally, the one

paying the other to be absolved, for:

   (i)        payment of the sum of US$24,100 as special damages for loss

              of profits;

   (ii)       payment of the sum of US$10,000 as restitution;

   (iii)      interest on the aforesaid amounts at the prescribed rate

              calculated from the date of judgment to the date of full and

              final payment;

   (iv)       costs of suit on a legal practitioner and client scale.
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Scanlen & Holderness, plaintiff’s legal practitioners
Macheyo Law Chambers, defendants’ legal practitioners