Quefin Investments (Pvt) Ltd v Oppler Enterprises (Pvt) Ltd

### Preamble
1
HH 243- 2013
HC
2225/2011
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QUEFIN INVESTMENTS (PVT) LTD
versus
OPPLER ENTERPRISES (PVT) LTD

HIGH COURT OF ZIMBABWE
CHIGUMBA J
HARARE 22 May and 24 July 2013

W. Nyika, for the plaintiff
D. Mupwanyiwa, for the defendant

Civil Trial

CHIGUMBA J: The plaintiff’s claim against the defendant is for:

(a) The release of a reconstructed Nissan SE registration number AAH 5587

(b) Costs of suit.

Or alternatively

(a) That the defendant releases to the plaintiff his two motor vehicles namely Mazda B22 registration number AAH 5588 and Nissan SE registration number AAH 5587.

(b) Costs of suit.

The plaintiff issued summons against the defendant on 2 March 2011. In its declaration, the plaintiff averred that the parties entered into a swap agreement in 2009, in terms of which the plaintiff surrendered to the defendant a Mazda B22 vehicle, registration number AAH 5588, and the defendant undertook to use the parts of its Nissan SE vehicle to reconstruct the plaintiff’s Nissan SE motor vehicle registration number AAH 5587.
 The plaintiff averred that it paid for the cost of labor and for the spare parts from the defendant’s Nissan SE using its Mazda B22 vehicle. Despite demand, the defendant has failed refused or neglected to release the plaintiff’s duly reconstructed vehicle, as agreed.

The defendant filed its plea to the plaintiff’s claim, on the 15th of April 2011. It stated that the parties agreed that the defendant should panel beat and spray-paint the reconstructed vehicle. The costs of labour for the panel beating and spray painting, in the sum of US$700 00, 00 constituted a separate agreement to the one for reconstruction. The defendant prayed for the dismissal of the plaintiff’s claim with costs.

The defendant filed a counterclaim for security charges for storage of the plaintiff’s vehicle at its premises, in the sum of US$2 00, 00 per day. The matter was referred to trial on the basis of the following issues;

1. Whether the parties entered into a separate contract for panel beating and spray painting the plaintiff’s motor vehicle and if so the costs thereof.

2. Whether or not the plaintiff is liable to the defendant for security charges in the amount claimed or at all.

Alexander Nyamweda testified on behalf of the plaintiff. He told the court that the plaintiff entered into a swap agreement with the defendant, in terms of which the defendant was supposed to give to the plaintiff the engine from its Nissan vehicle. He said that the parties agreed that the defendant would put the plaintiff’s engine inside the body of a vehicle that he would provide. The plaintiff’s witness told the court that his own vehicle, from which the defendant was to remove the engine, and tyres, was in running condition when he drove it into the defendant’s workshop. The plaintiff left his vehicle at the defendant’s premises where all the accessories on the plaintiff’s vehicle, grayish black in color, were stripped and fitted on the defendant’s vehicle, which was white in color.

The witness told the court that he returned to the defendant’s workshop after one week and the job was complete, but when he requested that the vehicle be test run he discovered that the vehicle had no battery inside and it would not start. The starter appeared to not be working. The plaintiff testified that the fuel pump was also not working, and that he queried this because his vehicle had been running when he brought it into the workshop. He told the court that defendant at this stage indicated that the job was done. The plaintiff said that it was subsequently agreed that he bring a new fuel pump for the defendant to fit which was subsequently done. The parties went for a test drive and the witness was not happy with the way the refurbished vehicle was moving.

Mr. Nyamweda testified that he then asked the defendant to fix the scrape on the body of the car which indicated that another vehicle had scraped against the body of the cars in the defendant’s workshop where it was parked. He said he asked the defendant to fix the engine and to fix the body of the car. He returned after two weeks to the defendant’s workshop where the defendant then indicated that it was charging separately, a figure of US$700 00,00 for panel beating and spray painting the car. He testified that he offered the defendant a Mazda B22 00 in lieu of the US$700 00, 00 since he had no money. He said the defendant accepted, and took the green Mazda B22 00, registration number AAH 5588, in lieu of payment. The plaintiff told the court that he did not get the reconstructed Nissan vehicle, from the defendant, to date. He testified that the defendant refused to release the vehicle, claiming that it had a lien over it, because the plaintiff had not paid in full, for the work done. He denied that the plaintiff was liable to the defendant for storage charges, because he stated that he never failed to collect his vehicle, the defendant unilaterally denied him access.

Under cross examination, Mr. Nyamweda admitted that he signed the written agreement between the parties on behalf of the plaintiff and that when he did so, he had read and understood the terms of the agreement. He confirmed that the original agreement to rebuild one vehicle using parts from another vehicle did not include repairing parts removed from other vehicles. He insisted that panel beating and spray painting were included in the original agreement, because in his view the term re-building implied that panel beating and spray painting would be done. He admitted that he bought the body of the vehicle belonging to the defendant “voetstoots”, as it stood, but could not explain how he came to understand that a vehicle bought as it stood ought to be panel beaten and spray painted. Finally, the witness denied being liable for storage charges to the defendant, on the basis that he was never told to collect his vehicle or become liable for storage.


The plaintiff called a second witness, Francis Mbozha, an auto technician who attended to the grey Nissan motor vehicle registration number AAH 5587, on behalf of the plaintiff, as its mechanic before the parties entered into the swap deal. He told the court that the starter which was fitted onto the rebuilt vehicle was not the original starter that was on the vehicle when he last serviced it. He said an old battery had been put in place of the car’s actual battery. He confirmed that the plaintiff’s vehicle had been in good working condition when he had last repaired it, and stated that the new reconstructed vehicle could not even start.

Under cross examination he told the court that he had repaired the starter to the plaintiff’s vehicle in the same month that the plaintiff took it to the defendant to swap with. He admitted that he was not there when the vehicle was delivered to the defendant. He admitted that he did not know if any other mechanic had worked on the vehicle after he did and prior to its delivery to the defendant. The plaintiff then closed its case.

The defendant called Noel Zikhali, one of its directors, who confirmed that the parties entered into a swap agreement, in terms of which:

1. The bodies of two vehicles belonging to each of them would be swapped.
2. The spares from the plaintiff’s vehicle would be removed and put in the defendant’s body.
3. The plaintiff would surrender a third vehicle, a Mazda B22, to the defendant, in lieu of payment for the cost of labor of stripping one vehicle and rebuilding another.
4. No further payment would be due or owing between the parties thereafter.

Mr. Zikali told the court that it was only after the reconstruction was completed that the plaintiff’s representative asked the defendant to spray paint and panel beat the reconstructed vehicle, a request which did not form part of the original agreement between the parties. He said that this request came after Mr. Nyamweda realized that the reconstructed vehicle now had two colors. The defendant’s vehicle body was white in color; the plaintiff’s vehicle body was blackish grey in color. The doors to the plaintiff’s vehicle, which were blackish grey in color,had been fitted onto the body of the defendant’s vehicle, which was white in color. It was obvious that a respray was required to make the reconstructed vehicle a uniform color.

The defendant’s witness told the court that after inspecting the reconstructed vehicle, The plaintiff requested a re-spray and was advised that it would be necessary to do some panelbeating otherwise the new paint would not look even. Mr. Zikali testified that the plaintiff was expressly told that the cost of panel beating and spray painting would be US$700, 00, and that he agreed to pay. The witness told the court that when the job was done, the plaintiff’s representative was called in and he inspected the reconstructed vehicle and was happy with the job done. At that stage, the witness said, Mr. Nyamweda indicated that he had no money, and he was told that the defendant would start charging storage costs of US$2 00,00 per day until the vehicle was collected. Mr. Zikali told the court that he would release the plaintiff’s vehicle when he was paid the US$7 00, 00 labor costs for panel beating and spray painting.

There were two agreements entered into by the parties, one written and another oral one, pertaining to panel beating and spray painting.

The question that the court must determine is whether the parties agreed to the terms of each agreement, whether there was a meeting of their minds.

The law on this issue is clearly set out by *Christie in The Law of Contract in South Africa* 3 end, at p 116 as follows:

"It often happens that during the negotiations leading to the formation of a contract, or in the terms of an informal contract itself, mention is made of a written document or of the reduction of the terms of the contract to writing. This immediately raises the question whether the informal contract is binding and the written document only intended for purposes of proof of the terms of the contract, or whether there is to be no contract until the written document has been drawn up and executed. Grotius 3.14.26 gives clear directions for the answering of this question:

'The contract of sale may be made in writing or without writing. A written sale is not considered to be complete until the writing has been fully executed. But with us, although there is mention of writing, this is understood not to be with a view to a written contract, but merely for the purpose of reducing to writing the terms agreed upon for better remembrance and proof, unless there is clear evidence of a contrary intention.'" It is clear from what Grotius says that the burden of proof rests on the party who asserts that a verbal contract was not intended to be binding until it is reduced to writing and signed. The principle has been accepted in a number of cases. For example, in Woods v Walters 1921 AD 303 at 305-306 INNES CJ said:

"It follows of course that where the parties are shown to have been ad idem as to the material conditions of the contract, the onus of proving an agreement that legal validity should be postponed until the due execution of a written document, lies upon the party who alleges it."

In the present case, that burden rests upon the plaintiff in relation to both the oral and the written contracts. The question which now arises is whether the plaintiff discharged that burden. I do not think so.

The court found Mr. Zikali to be a credible witness. His demeanor inspired confidence that he was telling the truth. He was calm where the plaintiff’s first witness was agitated and argumentative. He did not raise his voice under vigorous cross examination. He was not shaken under cross examination; he repeated his story accurately and did not change a single vital detail. Mr. Nyamweda for the plaintiff did not make a credible witness. He changed details of his story during both cross examination and re-examination. He clearly fabricated some aspects of the agreement between the parties. First there was a written agreement. Then a subsequent oral agreement for panel beating and spray painting. To suggest that it was implied in the written agreement that panel beating and spray painting with attendant costs were covered by the value of the Mazda B22 is disingenuous and dishonest, and amounts to clutching at straws. I find that the written agreement between the parties was discharged in full. It is the oral agreement which requires a finding as to whether the parties were ad idem.

The law that governs the right of a workman to hold onto the property that he has spent money on and improved, on behalf of another, is set out in:

Wille's Principles of South African Law 8 Ed, at p 342 in the following way:

"A person who bona fide incurs necessary expenses on the property of another person, whether as a result of a contract or not, has a salvage lien on the property for the amount of such expenses as have maintained or advanced its market price."


Another name for lien is "a right of retention". The possessor has the right to retain possession of the property until he has been duly compensated.

The plaintiff’s second witness did not assist the court at all to resolve the issues before it, which have nothing to do with spare parts, the starter and battery, their theft or unlawful replacement or otherwise. There is no proof before the court as to the actual condition of the plaintiff’s vehicle when it was delivered to the defendant’s workshop. I find the testimony of Mr. Zikali believable, in regards to the subsequent oral negotiations between the parties, for payment of US$700, 00 labor costs for panel beating and spray painting. The defendant obviously needed to procure paint. The suggestion that the defendant would do so at its own cost, out of its own pocket, is not believable. The evidence before the court does not show where or when the defendant agreed to do so, after having agreed to accept the Mazda B22 00 in lieu of payment for the costs of labor of the reconstruction. The plaintiff did not query the amount, or dispute that it was a fair sum for the job done, or deny that it was due. The plaintiff’s claim that this sum was included in the value of the B22 was not believed by the court.

I find that the defendant has made a strong case for its retention of the reconstructed vehicle until Plaintiff pays the US$700, 00 labor costs, in full.

However, it is my view that the defendant did not establish sufficient basis for its claim for storage charges of US2 00, 00 per day. The parties were never in agreement on that issue. Mr. Zikali made bald assertions which were not buttressed by any evidence as to what that rate was based on. He appears to have plucked that figure out of thin air. We are not told whether that is the current going rate for that industry, or the defendant’s going rate. We are not told what other companies are charging in order to do a comparative analysis. The court is not satisfied that the defendant was entitled to charge storage charges in the first place, let alone what the defendant was entitled to charge by way of storage charges, and will dismiss its claim on the basis that there was insufficient evidence to enable the court to make a determination.

It is hereby ordered that:

1. The defendant release to the plaintiff a reconstructed Nissan SE registration number AAH 5587, within seven days of the date of this order.
 2. The plaintiff pay US700, 00 to the defendant, in exchange for the release of the Nissan motor vehicle referred to above, together with interest thereon at the prescribed rate calculated with effect from the date of the summons to the date of payment in full.

3. Each party shall bear its own costs.

Nyika Legal Practitioners, plaintiff’s Legal Practitioners
Mufadza & Associates, defendant’s Legal Practitioners
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