Kemerst Construction (Pvt) Ltd v The School Development Association (SDA) of Chitsere Primary School

### Preamble
1
HH 30/21
CASE NO. HC 3597/15
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KEMERST CONSTRUCTION (PVT) LTD

versus

THE SCHOOL DEVELOPMENT ASSOCIATION (SDA) OF CHITSERE PRIMARY SCHOOL

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 13 January 2021

Civil trial

P Nyeperai, for plaintiff

C Nyika, for defendant

TAGU J: The undisputed facts in this case are that the plaintiff being represented by Mr. Ernest Magome the director, carried out refurbishment works at the defendant’s school, Chitsere Primary School worth US$44 375.20. The defendant managed to pay the plaintiff an amount of US$23 700.00 leaving a balance of US$20 675.20. This balance is what the plaintiff is now claiming from the defendant together with interest at the prescribed rate and cost of suit.

The defendant is now refusing to pay the balance alleging that Mrs. Chuma who was the then Acting Headmistress of the defendant and also the chairperson of the School Development Association had no authority to contract the plaintiff to carry out the refurbishment works at the school.

The sole issue for determination in this case as captured in the Joint Pre-Trial Conference Minute is whether or not there was a contract between the plaintiff and the defendant for the provision of refurbishment services to Chitsere Primary School.

THE LAW

It is trite that for there to be a valid contract the following requirements must be fulfilled.

There should be a valid offer that must be accepted;

The minds of the parties should meet;

The parties should have the serious intention to be legally bound by the agreement;

The parties should have contractual capacity;

Whatever parties agree on should be within human capacity to perform;

The terms of the agreement must be clear;

The contract may be required to satisfy formalities’ by the law; and

The agreement must be legal- Innocent Maja- “The Law of Contract in Zimbabwe” page 20.

The plaintiff in its evidence maintained that there was a contract between the parties hence he performed in terms of that contract. He even stated that other than the then Acting Headmistress, some members of the School Development Association even inspected the progress of the work being done. It maintained that it be paid its balance because the new head of the school who took over from Mrs. Chuma even confirmed in a letter that the school owed him. The letter which was produced as an exhibit reads as follows-

“RE: OUTSTANDING PAYMENTS FOR PROJECTS AT CHITSERE PRIMARY SCHOOL

The above matter refers.

Our records show that the school owes you an amount of $20 675.20. Although the work has not been completed may you give us the contract agreement and commitment made between you and the school to facilitate us to make new payment plans.

I hope you will give the above details early.

Yours faithfully,

Muganhu K (Head)”

On the other hand all the defendant’s three witnesses, namely Mr. Moses Wachi, Mr. Panganai Ngwadzai and Mr. Kasirai Muganhu stated that the issue of the contract was not in dispute. They all accepted that there was a contract between the parties. They however, sought to lead evidence to establish that the work was not properly done.

In its closing submissions the defendant does not dispute that there was a contract between the parties. It maintained that the work was not done to completion. With the greatest of respect to the defendant, that was not the issue before the court. The issue was whether or not there was a contract of refurbishment between the plaintiff and the defendant. The evidence clearly proved that there was indeed such a contract. Whether the work was done to perfection is something else that should not detain the court as it was not pleaded.

Going by the letter written by the new Headmaster of the school the defendant indeed owed the plaintiff an amount of $20 675.20. The plaintiff therefore proved on a balance of probabilities that it is owed $20 675.20. The defendant is therefore liable to pay plaintiff an outstanding balance of $20 675.20.

IT IS ORDERED THAT

The Defendant is ordered to pay to the Plaintiff the sum of US$20 675.20 (Twenty Thousand Six Hundred and Seventy Five United States Dollars Twenty Cents) at the prescribed rate being the balance due to Plaintiff for refurbishment services rendered to the Defendant by the Plaintiff.

Interest at the prescribed rate on the sum of (US$20 675.20) Twenty Thousand Six Hundred and Seventy Five United States Dollars Twenty Cents calculated from the 28th of March 2013 to the date of full and final payment.

Costs of suit on a legal practitioner and client scale.

Chizengeya, Maeresera & Chikumba, plaintiff’s legal practitioners

Nyika, Kanengoni & Partners, defendant’s legal practitioners.