Denkamp Investments (Pvt) Ltd v DST (Pvt) Ltd

### Preamble
1
HH 154-13
HC 593/06
DENKAMP INVESTMENTS (PVT) LTD
versus
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DENKAMP INVESTMENTS (PVT) LTD
versus
DST (PVT) LTD

HIGH COURT OF ZIMBABWE
HUNGWE J
HARARE, 21 September 2006 & 22 May 2013

Civil Trial

Advocate P Machaya, for the plaintiff
C Nhemwa, for the defendant

HUNGWE J: Two ladies wanted to build a house. They only had the ground but no title to it. Keenly aware of price fluctuations, they bought building material from the defendant whilst waiting for title to the land to be processed. The defendant persuaded them to pay for the roof and roof trusses before-hand. They paid. When time to deliver arrived, the defendant demanded more money for the same material. The ladies refused and insist that since they have performed their side of the bargain, the defendant must deliver. They sued for specific performance.

The Evidence

It was not in dispute that the plaintiff, represented by one of its directors purchased building materials in readiness for a house construction project in Harare. These purchases were arranged through the agency of the building contractor from the defendant. The parties had previous business dealings regarding such projects. The roof and roof trusses were not bought when the rest of the materials were bought. A salesman from the defendant then approached the plaintiff’s director and urged her to pay for the roof and roof trusses materials in exhibit 4 and 5. What transpired in connection with the purchase of roof and roof trusses is a matter of contention. The plaintiff’s director, Alice Nyadongo who gave evidence on the plaintiff’s behalf told the court that she had not yet secured title to the land on which the building construction was to take place. From her previous experience it was not advisable to build when title had not been secured. Therefore she was not in a hurry to purchase the roof and roof trusses despite the solicitations to do so from the defendant’s salesman. Chifamba, the salesman however persisted with his exaltations towards the purchase of the roof and roof trusses to the extent that he would visit her business premise insisting that she pays in advance for the roof and roof trusses. Both she and Chifamba knew that the existence of the physical structure was material for the production of the roof to specifications. Both of them were aware that the architectural drawings could be used to calculate the rough estimates of the cost of the roof and roof trusses. According to Nyadongo she was reluctant to pay for something she did not immediately require. She consulted her contractor, Mr Chimeri on the advisability of making the payment for the roof and roof trusses when construction had not commenced. His advice was that since they were in good books with Chifamba and the defendant, he could not foresee any problem.

On the basis of this advice she had paid for the roof and roof trusses materials as quoted by Chifamba. After she had paid, Chifamba never came back to her shop or to the building site. There was no communication over the issue till she required delivery of the roof and roof trusses almost two years later. She was suddenly advised that she had to top up her payment as prices had escalated since. She believed that this request was unreasonable. She paid in advance specifically to avoid the situation she was faced with. On the other hand, Chifamba says he has regularly visit the building site with a view to measure the shell under construction for the sole purpose of manufacturing the roof truss of the house. There was no construction going on. He had written to the plaintiff and left the letter at the site warning the plaintiff that due to rapid inflation and lack of progress on the ground, she may be required to top up on her purchase price. He, for good measure produced a copy of the letter which he says put the plaintiff in mora. According to Chifamba, the plaintiff was in breach as it failed to put up a structure over which the roof was required in good time. The conditions of sell specifically spelt this out. The contract was one in which time was of the essence.

The witnesses for the plaintiff gave a more probable version of what might have happened. They corroborated each other on all material respects. It seems to me that upon securing a sale, Chifamba, the salesman is not likely to have pursued the issue regarding delivery of the roof and roof trusses as the onus to meet the conditions now lay on the contractor rather than the seller. He had the sale in his bag. Time passed. The defendant did not put aside the purchased items so as to hold the price down for the purchaser as had been anticipated at the time of purchase. The claimed delivery of a letter at the building site is unconvincing. Why would Chifamba who knew where Nyadongo spent most of her daytime deliver such an important document at an undeveloped site when the sale was concluded in the convivial of an up-market boutique? I find the reasons given for this unusual behavior fallacious. In all probability, the seller was content with the sale and had hoped that the buyer, eager to complete the project would rather top-up the original price than opt to cancel the sale. In an inflationary environment, it was the more prudent step to take. The conditions regarding fluctuation relied upon by the seller were never brought to the buyer’s notice. Even if they had been, I find that these were of no relevance in view of the fact that this was a cash sale.

I am entirely satisfied on all the evidence especially that furnished by the documents before the court, there was a binding contract between the parties in terms of which the defendant was obliged to supply and deliver to the plaintiff the items set out in exhibit 3 and 4.

The correct manner in which the remedy for specific performance should be approached was set out by ROBINSON J in Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21where at p 25 he writes:

“Historically, C it was KOTZÉ CJ in Cohen v Shires, McHattie & King (1882) 1 SAR 41 at 45 who, after consulting the authorities, held that Roman-Dutch law clearly recognised the right to a specific performance of a contract; and it is interesting to note that the classic exposition of the rule on specific performance was expressed in a case which arose in the High Court of this country and which came before the South African Appellate Division, namely, Farmers' Co-operative Society (Reg) v Berry 1912 AD 343. In that case INNES JA stated at 350:

‘Prima facie every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger (1 OR p 301), “the right of a plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond all doubt.’

That right has since been re-affirmed in a multitude of cases such as Woods F v Walters 1921 AD 303 at 309, Shill v Milner 1937 AD 10 at 1107, R v Milne & Erleigh (7) 1951 (1) SA 791 (A) at 873G, Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) at 378D-E, Baragwanath v Olifants Asbestos Co (Pty) Ltd 1951 (3) SA 222 (T) at 228A-B, Thompson v van der Vyver 1954 (2) SA 192 (C) at 194F-G, Diner v Dublin 1962 (4) SA 36 (N) G at 40A, Industrial & Mercantile Corporation v Anastassiou Brothers 1973
 (2) SA 601 (W), B K Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) at 433D-G, Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 440G-441C, Dithaba Platinum (Pty) Ltd v Erconovaal Ltd & Anor 1985 (4) SA 615(T) at 627I, Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 782H-I and Crundall Brothers H (Pvt) Ltd v Lazarus NO & Anor 1992 (2) SA 423 (ZS) at 430C-D.”

It was held in Intercontinental case (supra) that a wronged party to a contract had a right to select his remedy and the court would enforce that right unless there were compelling circumstances to refuse the remedy and award damages only. The onus was on the party seeking to avoid specific performance to establish the facts and circumstances which the court should have regard to in the exercise of its discretion to refuse specific performance. One such circumstance was where it was impossible for the party to perform specific performance or where it could cause undue hardship on the party require to perform specifically. I did not hear the defendant to plead either circumstance. To date it is still possible for the defendant to comply with an order of specific performance. Its witnesses confirmed this. The court must also consider whether it would be unjust or unconscionable to order the defendant to perform in terms of the contract. I find that it is not.

In the result therefore I enter judgement for the plaintiff and make the following order:

(1) Defendant be and is hereby ordered to supply and deliver to the plaintiff the roofing material in terms of its quotation Nos E3759 and E3759A; or

Alternatively;

(2) Defendant be and is hereby ordered to pay to the plaintiff the current cost of supplying the roofing material with interest thereon as from the date of judgment up to date of payment in full;

(3) Costs of suit.

Gill, Godlonton & Gerrans, plaintiff’s legal practitioners
C Nhemwa & Associates, defendant’s legal practitioners
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