Reg Harris v Griesberg Services

### Preamble
1
HH 208-18
HC 916/13
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REG HARRIS

versus

GRIESBERG SERVICES

HIGH COURT OF ZIMBABWE

CHATUKUTA J

HARARE, 16 January and 19 April 2018

CIVIL TRIAL

S Evans, for the plaintiff

P Musekiwa, for the defendant

CHATUKUTA J: The plaintiff and defendant are both companies which are duly registered in accordance with the laws of Zimbabwe. The plaintiff has been in the business of fuel retailing, servicing, repairing and maintaining vehicles. The defendant is an oil company retailing fuel. The parties entered into a joint venture sometime towards the end of 2007 with the objective to procure fuel and retail it at service stations. The agreement was reduced into writing. The plaintiff had a fuel outlet and a large customer base having been in operation for 35 years. The defendant had been granted a fuel importing license. The parties agreed that each party would inject equal capital into the joint venture for the initial purchases of fuel. The plaintiff, however, contributed about US$14 400 while the defendant brought forth about US$13 000. The parties agreed that they would share profit and loss in equal shares. Ian Harris, the managing director of the plaintiff, and David Chiweza, the managing director of the defendant, were co-directors of the joint venture. The business did not succeed as envisaged by the parties and the joint venture was terminated sometime in 2008. The joint venture financial statements were prepared in April 2009 and the parties failed to agree on the statement.

In September 2009, the plaintiff, without consulting the defendant, instructed BDO Tax & Advisory Services P/L (hereinafter referred to as BDO) to prepare accounts for the joint venture. The defendant agreed to supply BDO with all the relevant information to prepare the accounts, after the appointment was brought to its attention. BDO prepared its first report in January 2010 in terms of which it concluded that the defendant owed the plaintiff. The defendant commented on the report on 20 May 2010. The second report was produced on 26 May 2010. The report was again disputed when the parties met in September 2010. A third report was produced in March 2011.  There was no communication between the parties regarding the third report. BDO produced a final report on 12 October 2012 without any further comments from the defendant. In terms of that final report, the plaintiff was entitled to a share of assets in the sum of US$22 755.39 and the defendant to US$19 412.61. The amounts constituted capital contributions made by each to the joint venture and profits due from the operations of the joint venture.

The plaintiff issued summons on 5 February 2013 against the defendant claiming the sum of $22 755.39 with interest thereon at the prescribed rate. The summons was served on the defendant on 14 March 2014. The defendant entered appearance to defend on 18 March 2014. It filed a plea on 30 March 2014 raising prescription as a defence to the claim.  It contended that the joint venture between the parties was terminated in June 2008 and it is at that stage that the debt claimed became due. It however did not plead over the merits of the claim.

At Pre-Trial Conference stage, two issues were referred for determination at trial. The parties’ legal practitioners signed on 24 February 2017 a Joint PTC Minute identifying two issues for trial. The first issue was whether or not the matter has prescribed. The second issue was the quantum owing to the plaintiff.

The parties called three witnesses in total; two on behalf of the plaintiff and one for the defendant. The plaintiff called one, Ian Harris, the Managing Director of the plaintiff, as its 1st witness. The testified that the parties agreed that the defendant would procure the fuel whilst the plaintiff would sell the fuel at its outlet. The defendant would also run the operations of the joint venture using its own employees as the joint venture was undercapitalised. In line with that agreement, one Mike Chiweza, David Chiweza’s brother, was the general manager and one only identified as Nico, was the accountant. The defendant kept all the records of the transactions of the joint venture and proceeds from the venture would be deposited into the defendant’s bank account. Plaintiff was therefore not a signatory to the defendant’s bank account.

The joint venture was undercapitalised and both parties agreed to reinvest into the joint venture any proceeds from the venture. Initially the business was operating from the Reg Harris outlet. It subsequently expanded to Engen Mbare, an outlet run by the defendant and Chemcorp. Proceeds from these outlets were also deposited into the defendant’s bank account.

David Chiweza later communicated to the plaintiff in April 2009 that the joint venture was not profitable which prompted the termination of the joint venture. The business continued up to June 2009 as there were still some products to be sold. Upon winding up of the joint venture, Ian Harris asked for the joint venture’s financial statements so as to establish why David Chiweza was alleging that the joint venture was making a loss despite the business having grown and other outlets opened. A financial statement was furnished by the defendant. The statement was brief and figures did not tally. A meeting to discuss the statement was held at the request of Ian Harris. During the meeting, he queried the accuracy of the statement. He could not establish the full state of the finances because all documents including bank statement and documents from fuel suppliers were held by the defendant. He requested further information which was duly furnished. He still was not satisfied with the statement. He then, engaged the services of BDO in September 2008 for an independent assessment of the finances of the joint venture and to establish how much the plaintiff was owed.  The plaintiff was only able to furnish BDO with information from the Regis Harris outlet. Based on the available documents, BDO produced a number of draft reports. The final report was produced on 12 October 2012 reflecting that plaintiff was owed US$22 755.39 by the joint venture. It soon thereafter issued summons on 5 February 2013.

The summons were only served on 14 March 2014 because the plaintiff had difficulties in locating David Chiweza who was the representative of the defendant. Chiweza had relocated to different premises on four occasions without advising the plaintiff. At one stage the plaintiff had to engage the services of a professional tracing agency to locate David Chiweza.

Under cross-examination, Ian Harris failed to provide an exact date of commencement as well as the termination of the joint venture. His evidence was that if David Chiweza says that the joint venture was set up in 2007 then it was terminated in 2008 and if he suggests that it was in 2008 then it was terminated in 2009. He conceded that the defendant gave both the plaintiff and BDO information on the operations of joint venture. He however considered the information inadequate to establish how much was owed. He could not say how much, if at all, was due to plaintiff according to the joint venture financial statement. He was not able to say if there was any difference between the amount owing as per the joint venture statement or from the BDO report. He however conceded that the plaintiff withheld profit from April to June 2008 which amount was not included in the final statement by BDO.

The second witness for the plaintiff was Admire Chiwocha. He testified that he was a supervisor in the advisory department responsible for accounting at BDO. He was the accountant in charge of the preparation of the report for the plaintiff. The plaintiff engaged BDO in September 2009 but had conducted prior discussions with the plaintiff in September 2008. BDO’s mandate was to come up with an independent report on the operations of the joint venture detailing the amounts due to each partner. Chiwocha stated that from the information he received, the joint venture commenced in late 2007 and trading ended on 7 July 2008. In November to December 2009, he moved to the defendant’s offices where his team was given access to information for the joint venture. He was given cash books with details of deliveries and daily sales of fuel for 3 stations namely; Engen Mbare, Reg Harris and Chemcorp. In January 2010, he produced the first draft of the financial report. There were gaps in the report because the information available was inadequate. Although he had a book showing moving balance of stock, there were no stock sheets to support the balances despite parties having agreed to the balances. He did not have statements and invoices from NOCZIM neither did he have details on the expenses of the joint venture.

He presented the first draft to the parties for their comments and inputs. The plaintiff’s comments were immediate while the defendant commented on 20 May 2010. The defendant argued that the report had gaps as it did not contain expenses such as rentals, operating expenses, a fuel tank retained by the plaintiff valued at $4000 and there were no statements or invoices from fuel supplier NOCZIM.

He subsequently received bank statements from Chiweza while Nico the accountant and administrator came and assisted him to get full information from NOCZIM. The bank statements were however incomplete. He prepared the 2nd draft on 26 May 2010 which now incorporated information from NOCZIM and the defendant’s comments. The 2nd draft was again disputed by the defendant. BDO produced the third draft in March 2011. The plaintiff commented on the draft. There were no comments from the defendant to that report as he failed to contact Chiweza. The final report was produced on 12 October 2012 only after BDO decided that the production was long overdue. The plaintiff had not followed up and the defendant had still not commented on the March 2011 report.

Two reports were produced by the plaintiff through Chiwocha. Both reports are dated 12 October 2012. Chiwocha testified that the first report was the balance sheet and income statement with notes. The second report was the distribution account based on the profits from the joint venture and contained the assets, liabilities and reconciliation upon termination of the joint venture. The two reports complemented each other. The reports detailed all the transactions except the expenses. They reflected all the stock purchases and sales.

Chiwocha conceded under cross examination that he only started working on the report in November 2009. He could not satisfactorily explain the discrepancy between Ian Harris’s evidence that instruction were given to BDO in September 2008 yet work was only commenced in November 2009. Both the October 2012 reports contain gaps which the witness attributed to David Chiweza’s limited cooperation. He was not aware of the terms and conditions of the joint venture because he was not given the agreement. He was not aware of the rate of commission agreed upon by the parties. He did not know whether the joint venture had salaried employees who were entitled to and did receive severance packages upon termination of the venture. He was not aware of the other expenses incurred by the joint venture other than for the procurement of fuel products. He was not aware if there were any rentals paid for use of outlets owned or managed by the parties but also used by the joint venture

He further conceded to various anomalies in the report. He however maintained that despite the gaps and the anomalies, the figures were accurate and reflected the correct state of affairs of the joint venture upon its termination. The figures were supported by cash books availed by the defendant which books contained a full set of purchases of stock and sales. The defendant had cooperated by availing the documents and facilitating access to documents from NOCZIM. He could not recall the exact date of production of the 3rd report other than that it was presented to the parties in March 2011. He conceded that the October 2012 report was a mere reproduction of the March 2011 report reflecting the same amount as due to the plaintiff. He also admitted that he used the following information to produce the report: daily cash books, detailed transactions on sales, vouchers/ statements from NOCZIM and stock expenses/purchases and final bank statement which information was availed by the defendant.

The following anomalies and gaps were apparent from the report following the cross examination of and were conceded to by Chiwocha:

According to the report, the bank statement reconciliation was with effect from 16 December 2008. Chiwocha conceded that the year 2008 was an error it was supposed to be 2007.

Despite the fact that the joint venture commenced sometime in 2007, the bank statement reconciliation did not reflect the transactions for that year.

At page 40 of the record (page 16 of the second report)  it is stated that US$6 278.58 was paid as commission by the plaintiff yet on the distribution account on page 13 (page 3 of the first report), the plaintiff is said to have retained only US$3 918.

At page 40 of the record, BDO apportioned itself $3 500 as accounting fees yet it was common cause that it was engaged by the plaintiff and not the joint venture to prepare the report. The fees were therefore payable by the plaintiff.

At page 30 of the record (page 25 of the first report), the opening bank balance as at 12 December 2008 (2007) was $16 911.62. The funds deposited into the account from sales for the joint venture were $83 151. 98. There are other deposits in the sum of $44 780.00 which Chiwocha testified were the defendant’s personal deposits and did not belong to the joint venture.  The total funds belonging to the joint venture were therefore $100 063.60 and not $144 843.60 as stated in the report. Expenses for the joint venture are recorded as purchases from NOCZIM amounting to $106 985.60 plus other expenses amounting to $17 360.00 totaling $124 345.60. The expenses therefore exceed the funds of the joint venture ($100 063.60)  by $24 282.00. The joint venture was therefore overdrawn by $24 282.00.

On page 39 of the record, cash purchases totaled US$97 471 yet on page 30 they were $106 985.60.

Chiwocha approximated the purchases to be around $200 000 and not $106 985.60 on page 30 or the $97 471 on page 39. According to the bank statement, the total deposits were $83 151.98 and at no time did the account reflect a total sum of US$200 000.

The reports did not reflect that the plaintiff retained profit realized between April and June 2008 which profit would reduce the amount due to the plaintiff.

The report did not capture all the expenses for the joint venture other than for the procurement of fuel products from NOCZIM and a sum of $17 360.00 which Chiwocha could not satisfactorily explain how it was arrived at.

The defendant called its sole witness one, David Chiweza. He testified that the parties entered joint venture at the end of 2007. The joint venture employed three employees who were known to the plaintiff. He however could not recall the conditions of employment of the employees. The employees were Mike Chiweza (his brother), Nico (responsible for accounts) and a secretary (he could not recall her). The employees were responsible for the management of the joint venture with Ian Harris and himself overseeing the management as co-directors of the joint venture. The joint venture was undercapitalized which resulted in little profit being realised as the business was depended on sale of high volumes of fuel. This prompted its termination in March or April 2008. When the joint venture commenced, the parties agreed to factor in a markup of 5 cents per litre. The mark up would however fluctuate due to fluctuation of the price of fuel in an unstable economic environment. Therefore, instead of getting 5 cents per litre, there were occasions they would get as little as 1 cent per litre. An average of 3 cent per litre was therefore not viable. The plaintiff still wanted to use 5 cents per litre in working out the profit to the joint venture without taking into account the fluctuations and therefore overstated the profit realized by the joint venture. This was one of the causes of the plaintiff’s disgruntlement with the report prepared by Nico in 2009 because Nico had used the actual cost of fuel and actual markup and sales per day to come up with the financial statement. Upon termination, the parties agreed to compensate the employees, reconcile outstanding stock and that the plaintiff should retain some of the stock. The witness said that he did not recall the amount of stock retained by the plaintiff but the defendant did not remain with any stock. After reconciliation, Nico’s report reflected that about US$3000 remained due to the plaintiff although he was no longer sure of the exact amount.

After the meeting soon after termination of the joint venture, he assumed that the issues raised by Ian Harris on behalf of the plaintiff had been resolved. He was surprised when the plaintiff resurfaced a year later in 2009 indicating that it had engaged BDO. The defendant gave BDO unfettered access to all the documents and information of the joint venture. Defendant had to recall Nico from South Africa at its own expense to assist BDO. Chiweza contested the accuracy of all the reports by BDO stating that a lot of information was missing which BDO did not take into account even after being availed the information thus rendering the final report by BDO and particularly the amount said to be due to the plaintiff inaccurate. The report did not include the severance packages due to the employees of the joint venture. It did not contain other assets such a vehicle which was given to Mike Chiweza as part of the severance package. Rentals for outlets which were not under the control of the joint venture were not included as an expense to the joint venture.  He denied ever receiving the 3rd report. He only got the final statement of 12 October 2012 with the summons. There was no significant difference between the first and final reports. He testified that the plaintiff ought to have filed its claim upon termination of the joint venture.

The joint venture’s address of service was in Southerton where he had been running a company called Faust Products since 1974. He only left the offices to new premises in November 2017. Ian Harris used to visit him at the  Southerton address. He also had a fixed residential address where service of the summons was effected in Glen Lorne until 2015. He was running Lobels Holdings until end of August 2012. At one time, the joint venture operated from 230 Samora Machel Avenue, Harare. The property was sold after termination of joint venture. He also could be found at Engen Mbare and Charter Street offices where he operated from. In fact, Chiwocha and his team from BDO used to come and access information on the joint venture at the Charter Street offices. Ian Harris was aware of all these addresses and therefore was misleading the court when he said he could not be located.

After hearing the evidence of the three witnesses, I make the following observations: Ian Harris appeared not to be familiar with the terms and conditions of the agreement establishing the joint venture. He was not certain as to when the joint venture commenced and was terminated yet he was a co-director in the joint venture representing the plaintiff’s interests. There were a lot of omissions in his evidence. He failed to produce the statement prepared by Nico for the joint venture. He never disclosed how much was said to be due to the plaintiff in that statement. He failed to produce the first three statements prepared by BDO yet the reports were pivotal in assisting the court when the plaintiff became aware of the amount due to it. There was no explanation why the reports were not produced. The court was therefore none the wiser as to how much was owing in the joint venture report  by Nico and the first three reports produced by BDO and to what extent the reports were different from the final reports of 12 October 2012. He did not disclose the name of the tracing agency that the plaintiff used to trace David Chiweza, and when the agency was engaged.  He did not indicate the outcome of the tracing. No evidence was lead as to how and when the plaintiff became aware of Chiweza’s numerous relocations and his residential address where the summons were ultimately served. The assumption which can be deduced from these non-disclosures is that the witness was not being truthful as to when the plaintiff exactly became aware of what was due to it and therefore when it ought to have instituted the present proceedings. The omissions clearly left a dent on his credibility.

Turning to Chiwocha, he was not able to satisfactorily explain the discrepancies in the report that he prepared. Despite his initial protestations that the report was accurate he buckled under cross examination and conceded that because of the discrepancies, the report could not be accurate. His concessions during cross examination that there  were gaps and inconsistences in the reports puts into issue veracity of the report. Given the gaps it is therefore inexplicable how BDO could come up with a credible audit of the operations and finances of the joint venture.

David Chiweza did not fare any better. He left the court with the same impression that he was not truthful with the court. Chiweza could not recall the nature of the employment contracts for the joint venture employees, whether they were temporary or permanent. He took refuge behind the statement that he was a director just like Ian Harris and did not concern himself with the day to day operations of the joint venture. He was concerned with policy issues only. However, he testified that the joint venture paid out certain benefits to the employees of the joint venture. He was able to recall that the defendant gave his brother, Mike, a vehicle belonging to the joint venture as part of his severance package after having been employed by the joint venture for barely a year. Mike and the other two employees were also given cash as their severance package. Chiweza did not explain how much was given to the three and how it was computed. He was evasive and on a number of occasions and had to be reined in as he rumbled on in what appeared to be an attempt to confuse issues.

All the witnesses were therefore in my view generally not truthful.

I now turn to the main issue for determination, whether or not the claim by the plaintiff has prescribed.

In terms of s 15(d) of the Prescription Act [Chapter 8:11] (the Act), the period of prescription for a debt is generally three years. In terms of s 19(2) of the Act, “the running of prescription shall be interrupted by the service of process on the other party.” (See Masenga v Minister of Home Affairs 1998 (2) ZLR 183 at 189 D-E.) It is not interrupted by the issuance of summons.

Prescription begins to run as soon as a debt is due (s 16(1)).  Section 16(3) of the Act provides that a debt is not deemed to be due “until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises”.  A creditor is “deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care”. In Mukahlera v Clerk of Parliament 2005 (2) ZLR 365 (HC), Patel J (as he then was) set out the law on prescription. He remarked at 368E – 369 A-B as follows:

“In terms of s 15 (d) of the Prescription Act [Chapter 8:11], the period of prescription applicable to debts in general is three years. Section 16(1) provides that prescription commences to run “as soon as a debt is due.” The word “debt” in this context encompasses “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise” (see s 2 of the Act). By virtue of s 16(3), a debt is not deemed to be due “until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises.” However, a creditor is “deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”

The authorities cited by Malaba J in Ndlovu v Posts & Telecommunications Corporation 1998 (2) ZLR 334 (H) at 336 illustrate the circumstances when a debt becomes due. A debt is due when it is “owing and already payable” (Escom v Stewarts & Lloyds SA (Pty) Ltd 1979 (4) SA 905 (W) at 908E) or “immediately claimable” (Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A) at 532H) or “immediately exigible at the will of the creditor” (Benson & Anor v Walters & Ors 1984 (1) SA 73 (A) at 82H).

The “cause of action” in relation to a claim is “the entire set of facts which gives rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim” (per Watermeyer J in Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637). Similarly, in Patel v Controller of Customs & Excise 1982 (2) ZLR 82 (H) at 86, Gubbay J (citing Controller of Customs v Guiffre 1971 (1) RLR 91 (G) 1971 (2) SA 81 (R) at 84A, and Read v Brown (1888) 22 QBD 131) defined the cause of action as being “every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the court”. Again, Smith J, in Dube v Banana 1998 (2) ZLR 92 (H) at 95, observed that “the cause of action means the combination of facts that are material for the plaintiff to prove in order to succeed in his action”. See also Peeble v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H) at 45.”

Based on the above, it follows that certain requirements must be met when determining when a debt becomes due. The requirements in my view are as follows:

1. the creditor must become aware of the identity of the debtor;

2. the creditor must become aware of the facts from which the debt arises;

3. the creditor is deemed to have become aware of 1 and 2 if he could have acquired knowledge thereof by exercising reasonable care;

4. it must be clear when the debt is owing and payable; and

5. every material fact needed to prove such a claim must be present

It is not in issue that the plaintiff was aware of the identity of the debtor. What is in issue is whether the plaintiff was aware of all the facts from which the debt arose. In the event that the plaintiff was not aware of all the facts, when did he become aware of the facts and did he exercise reasonable care in establishing those facts.

The plaintiff contends that the debt only became due when BDO produced its final report on 12 October 2012 and not in 2008 when the joint venture was terminated. At the time when the joint venture was terminated, it did not have the necessary information to establish the amount due. The defendant willfully prevented it from establishing the amount due soon after the termination of the joint venture. Summons were issued timeously on 5 February 2013 well before the claim had prescribed. The plaintiff referred to the case of Zimasco Private Limited v SAN HE Mining Private Limited (supra).

The defendant contends that the debt became due in October 2008 upon the termination of the joint venture.  The parties having been in a joint venture, meant that the plaintiff was aware of its identity.  The facts upon which the debt arose were also known to the plaintiff. The plaintiff ought to have known how much was due then. Assuming that it was not aware of the amount due upon termination of the joint venture, the amount due as reflected in the reports prepared by BDO was substantially the same. The plaintiff therefore ought to have issued summons on the strength of the first report produced by BDO in January 2010.

As alluded to earlier, the plaintiff failed to produce the report prepared by Nico. The report would reflect the amount said to have been due when the joint venture was terminated. It would have assisted the court in ascertaining the difference of the amount said to be due then and the amount claimed in the present matter as reflected in the final report by BDO. The court cannot establish whether or not the report contained the same information used by BDO to prepare the final report. It is therefore difficult to conclude that the plaintiff was not aware of all the facts by virtue of being unaware of the amount due. The only assumption that the court can make is that the plaintiff ought to have been aware of the amount upon termination of the joint venture in 2008. The claim had therefore prescribed when the plaintiff issued summons in 2013 and served the same on the defendant in March 2014.

I am further in agreement with the defendant’s contention that if the plaintiff was not aware of the amount due in 2008. it ought, at the latest, to have been aware of the amount due when the first report was produced in January 2010. Chiwocha from BDO conceded that the amount due in the third and the final report was the same. Neither Ian Harris nor Chiwocha disputed the defendant’s evidence that the amount remained substantially the same in the first and second reports and in the final report. As alluded to earlier, it was surprising that the plaintiff did not produce the report prepared by Nico and the three reports prepared by BDO before the final report of October 2012. There is no excuse at all for the plaintiff’s failure to produce all the statements for the joint venture prepared by both Nico and BDO. The only conclusion that the court can draw is that the plaintiff was well aware of the amount due and chose not to produce the first three reports as they would disclose that the claim had prescribed when summons were issued and also served. If the plaintiff was able to proceed to issue summons on the strength of BDO report and without the input of the defendant it ought to have done so before.

Even assuming that the court is wrong in concluding that the plaintiff was aware of the amount due at the earliest on termination of the joint venture and at the latest on production by BDO of the first report in January 2010, the conduct of the plaintiff clearly exhibit a party who did not act diligently and with reasonable care in establishing what was due to it. According to Chiwocha’s evidence, BDO only  commenced working on the first report in November 2009 over a year after Ian Harris’s evidence that instructions were given to BDO in September 2008. The plaintiff did not adduce any evidence as to why it took BDO over a year to commence working on the report. The first report was produced in January 2010, almost two years after the termination of the joint venture. The second report was produced in May 2010. The third report was allegedly produced almost a year later in March 2011. The final report was only produced in October 2012, over a year after the alleged third report and over four years after termination of the joint venture. This final report was not produced at the prompting of the plaintiff but at the instance of BDO which was concerned with the delays in the finalization of what it considered to be a seemingly simple job that should have been completed within three months of receiving instructions.

The plaintiff attempted to place the blame for this delay on the defendant and particularly on David Chiweza whom Ian Harris stated could not be located. Chiweza’s evidence that he could be located at the places referred to in his evidence was not challenged. In fact, Chiwocha’s evidence was that during the preparation of the first and third reports Chiweza was easily contactable at some of the addresses alluded to by Chiweza in his evidence. This was at variance with Ian Harris’s evidence. There was no explanation given by the plaintiff on the initiatives taken to find the defendant, other than that it engaged the services of a tracing agency which was not identified by name and was not called to testify. There was no indication as to how the plaintiff finally became aware of Chiweza’s residential address where summons were served in 2014. It is not clear whether this was as a result of the work of the tracing agency or otherwise.

This brings the court’s attention to the delay between the issuance of and the service of the summons. Summons were issued on 5 February 2013, almost five years after termination of the joint venture. They were only served on 14 March 2014 a year later after issuance, that is almost 6 years after termination of the joint venture and 5 years after production of the first report. The third report which both Ian Harris and Chiwocha conceded reflected the same amount as due was produced in March 2011. Service of summons was effected a three years after the report. Inspite of the plaintiff’s claim that all endeavors to locate the defendant had been fruitless, it sat back and did nothing. Hence the claim had long prescribed. What is apparent is that the plaintiff was represented by the same legal practitioners from the time when summons were issued and served and when this matter was heard. The plaintiff had recourse under the rules on how to locate the defendant in order to serve the summons. It would have sought an order for substituted service. It did not do so. Again, the plaintiff did not adduce evidence explaining why it did not do so neither did it adduce evidence on the exact date the report was produced. .

There was obviously no reasonable care taken by the plaintiff throughout the history of this matter to establish the amount due so as to issue summons and to serve the summons timeously. I am persuaded by Chidyausiku J (as he then was) remarks in Lovemore Sango v Chairman of the Public Service Commission and Another HH 28/96 p2 that:

“Those who sit on their litigation until cows come home have only themselves to blame if condonation is refused when they finally wake up from their years of somnambulism”.

Although the remarks related to an application that had been made for condonation of late filing of a civil action, I believe they apply with equal force to the present case.

In the present case, the plaintiff discredited the joint venture report which was prepared by Nico and acquired the services of BDO in September 2009. The first report was compiled in January 2010 and was immediately commented on by the plaintiff whilst the defendant only commented on the 20th of May 2010. The 2nd and 3rd reports were compiled on 26 May 2010 and March 2011 respectively. The final report was compiled in October 2012 which was a period of 2 years from the compilation of the first draft and 3 years from October 2008, the date of termination of the joint venture. The parties were agreed that the 2011 report was the same as the 2012 report. In fact it was Chiwocha’s evidence that the plaintiff did not pursue the BDO to present the final report. BDO had to complete the report on its own without any prompting from the plaintiff.

Assuming that I have erred in concluding that the claim had prescribed, I turn to the second issue, whether or not the plaintiff is entitled to the amount claimed. The plaintiff submitted in its closing submissions that the defendant did not dispute in its plea the amount claimed. It should be concluded that it did not do so because it did not have a defence. It persisted with its argument that the plaintiff had proved its entitlement of the amount claimed. Consequently the claim should succeed.

Ordinarily I would not have dealt with the second issue having concluded that the claim had prescribed. However, the parties fully ventilated the issue and it is my view that it is in the interest of justice that I determine it.

The general proposition regarding pleadings is that a defendant must deal with all the issues raised in the summons. Failure to do so raises suspicion of:

“1.	Sheer idleness and incompetence of the pleader.

2.	A deliberate and unconscionable attempt to avoid attracting an onus or burden of adducing evidence.

3.	That the defence was an afterthought on the part of the defendant.” (See Keavney & Anor v Msabaeka Bus Services (Pvt) Ltd 1996 (1) ZLR 605 (S) at 608 D-E).

In Nexbak Investments (Pvt) Ltd & Anor v Global Electrical Mfrs (Pvt) Ltd & Anor 2009 (2) ZLR 270 sets out the rationale for so pleading 275 F-G:

“The importance of carefully pleading one’s case cannot be over-emphasised. As Kumleben JA et Nienaber JA stated in Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107C-E:

“At the outset it need hardly be stressed that:

‘The whole purpose of pleadings is to bring clearly to the notice of the Court and the parties to an action the issues upon which reliance is to be placed.’ (Durbach v Fairway Hotel Ltd 1949  SR 115; 1949 (3) SA 1081 (SR) at 1082).

This fundamental principle is similarly stressed in Odger’s Principles of Pleading and Practice in Civil Actions in the High Court of Justice 22 ed at 113:

‘The object of pleading is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision.’”

However, as stated in Moyo & Anor v Intermarket Discount House Ltd 2008 (1) ZLR 268 (S) there is an exception to the rule. Ziyambi JA remarked at 272 A-C that:

“It is true, as Mr Matinenga submitted, that the object of pleadings is to define the issues. In this regard, the courts have held that parties will be bound by their pleadings where any departure would be prejudicial to the other party or prevent a full inquiry. However, as Innes CJ remarked in Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at p 198:

“…within those limits the court has a wide discretion, for pleadings are made for the court, not the court for the pleadings, and where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as  thorough and as patient as in this instant, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”

She further remarked at 272 E-G that:

“In a similar vein, it was said in Middleton v Carr 1949 (2) SA 374 (A) at 385-6:

“… as has often been pointed out, where there has been full investigation of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised. But unless the court is satisfied that the investigation has been full, in the above sense, injustice may easily be done if the issue is treated as being before the court.”

As already alluded to, the parties ventilated the issue fully. Despite the defendant tot having challenged in its plea the amount claimed, the plaintiff agreed at PTC to have the issue referred to trial. The plaintiff led evidence on the amount claimed and cross examined the defendant’s representative on the same. The plaintiff’s claim was based on the BDO reports of 12 October 2012. It persisted that the reports accurately reflected the amount due to it. Under the circumstances, I am of the view that no injustice will be occasioned by determining the issue.

From the analysis of the evidence led by the parties, it is clear that the plaintiff failed to prove the amount due. The defendant discredited the report by BDO as appears in the inconsistences and gaps in the October 2012 reports and Chiwocha’s concessions. The plaintiff may not even be entitled to its contribution to the joint venture given Chiwocha’s concession that the defendant’s account was overdrawn.

Some of the disparities noted in the report could have been quelled by the production of the written agreement of the joint venture. The parties agreed that there was a written agreement for the joint venture yet none of them produced the same. The production of the written agreement would have also aided in defining the obligations of either party. The plaintiff and the defendant gave divergent evidence as to the obligations of the parties. Ian Harris alleged that the defendant was the manager and employed staff at its own cost to manage and administer the joint venture whilst the Chiweza stated that the joint venture employed 3 employees. This is an issue that was clearly resolvable with the production of the written agreement by the plaintiff. Both parties left the court to decide on who would be credible regarding what the agreement provided as if the agreement between the parties was oral yet there was a written agreement.

In the result, the plaintiff’s claim has prescribed. In any event, the plaintiff has failed to prove the amount claimed.

It is accordingly ordered that the claim be and is hereby dismissed with costs.

Mabuye Zvarevashe, legal practitioners for the plaintiff

Mabosasa, legal practitioners for the defendant