Rockshade Car Rentals and Tours (Private) Limited v Methodist Church in Zimbabwe

### Preamble
1
HH 530-25
HCH 1628/25
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ROCKSHADE CAR RENTALS AND TOURS (PRIVATE) LIMITED

and

METHODIST CHURCH IN ZIMBABWE

HIGH COURT OF ZIMBABWE

ZHOU AND CHIKOWERO JJ

HARARE; 19 June and 8 September 2025

Civil Appeal

P Mazhata, for the appellant

M Nyathi, for the respondent

CHIKOWERO J:

[1]	This is an appeal from the judgment of the Magistrates Court (“the court a quo”) sitting at Harare whose operative part reads:

“1. The application is hereby granted.

2. Respondent is ordered to pay US$7125.00 within 24 hours failure of which the Messenger of court is directed to attach the respondent’s bank account to recover the amount stated thereof plus costs on attorney and client scale.”

[2]	The judgment was delivered on 31 March 2025.  It was made pursuant to an urgent application filed in terms of Order 22 r 10 of the Magistrates Court (Civil) Rules, 2018 Statutory Instrument 11 of 2019 which reads:

“Urgent applications.

10. Subject to this order in an application whose urgency is supported by a certificate of a legal practitioner or in the case of an unrepresented applicant, the applicant’s affidavit, a magistrate may specify-

(a) shorter time periods within which the respondent’s opposing affidavit, applicant’s answering affidavit and heads of argument may be filed;

(b)   the date on which the application can be heard.”

[3]	Both parties were represented by legal practitioners before the court a quo, with the certificate of urgency contemplated by Order 22 r 10 being part of the founding papers.  The application was filed on 26 March 2015.  The learned magistrate specified that the matter be heard on 27 March 2025 at 11:30am.

[4]	The opposing papers were filed on 27 March 2025 at 11:40am.  At 11:55am, the court a quo sat to hear oral submissions after which it reserved judgment.  The judgment was rendered on 31 March 2015.

[5]	Order 22 of the Magistrates Court Rules deals with a number of applications.  The first is a court application where notice of the application is given to the respondent(s).  The second is an ex parte application where the person affected by an order made ex parte may apply to discharge it with costs on not less than twenty-four hours’ notice.  For purposes of this judgment it is not necessary that we mention the other types of applications provided for under order 22 of the Magistrates Court Rules.

[6]	It seems to us that the matter placed before the court a quo was filed as an urgent court application.  That court treated it as such.

[7]	The justification for the urgency was this.  The respondent hired from the appellant a 60 seater luxury bus to transport its congregants from Zimbabwe to attend a church seminar in Botswana from 2-6 April 2015 and, thereafter, to ferry them back to this country.  A few days before the congregants were due to travel to Botswana (by which time the respondent had already paid the agreed fee for the hire), the respondent became aware that the appellant only had one 50 seater luxury bus.  That bus had already been hired by the United Methodist Church for a similar trip to Botswana.  The appellant refused to refund the sum of US$7125.00 paid to it by the respondent as the fee for hiring the 60 seater luxury bus, insisting that the latter accepts a 57 seater luxury bus instead.  Having taken the view that the appellant had breached the contract of hire, and in need of a refund to enable it to deploy the same to pay for alternative transport, the respondent filed an urgent court application for payment of the refund.

[8]	After a careful consideration of the matter, the court a quo found that the matter was urgent.  It found also that the parties had entered into a verbal contract in terms whereof the appellant had hired a 60 seater luxury bus to the respondent at the discounted price of US$7125.00.  Satisfied that the appellant had breached that contract, it granted the application.  The dispute between the parties, which the court a quo was required to consider and determined was whether the parties’ contract of hire related to a 57 seater bus or a 60 seater one.  The former was the appellant’s version, hence its contention that it had not breached the contract because the 57 seater bus was available for the trip.  We now know what the respondent’s case was and that it found favour with the court a quo.

[9]	At the heart of this appeal lies the contention that there was a material dispute of fact incapable of resolution on the papers.  Accordingly, so we are told on behalf of the appellant, the court a quo erred in finding that the respondent had proved on a balance of probabilities that the parties contracted for the hire of a 60 seater luxury bus and that the appellant breached that contract.  We are being asked to reverse these factual findings.

[10]	The approach of an appellant court when asked to set aside findings of fact made by a lower court is trite.  In ZNWA v Mwoyounotsva 2015(1) ZLR 935(S) Ziyambi JA, in writing the judgment for the court, said at 940F:

“[16]	It is settled that an appellant court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it: or that the decision was clearly wrong.”

See Hama v National Railways of Zimbabwe 1996(1) ZLR 664(S) at 670; Metallon Gold Zimbabwe v Golden Million (Pvt) Ltd S 12/15.

[11]	The threshold for interference with the factual findings made by the lower court has not been met.

[12]	In opposing the application, the appellant annexed, to its opposing affidavit, a letter addressed to it by the respondent.  The letter reads:

“21 March 2025

THE OWNER

ROCKSHADE CAR RENTALS AND TOURS

NO 113 SAMORA MACHEL

AVENUE

HARARE

REPLACEMENT OF A BOOKED 60 SEATER BUS WITH AN OLD 57 SEATER BUS

The Methodist Church in Zimbabwe (MCZ) and United Methodist Church (UMC) Units of the World Federation of Methodist and Uniting Church Women hired 2 sixty seater new buses from Rockshade Car Rentals.

On 18 January, the United Methodist Church (UMC) ordered a 60 seater bus on quotation dated 18 January 2025 for $7500.  This was for travel to an Area Seminar in Botswana on 2 to 6 April 2025.  UMC welcomed Methodist Church in Zimbabwe (MCZ) delegates to join their bus hire.

As the numbers grew, it became obvious that a second bus was necessary.  Representatives of both UMC and Methodist Church in Zimbabwe (MCZ) Churches went to add MCZ on the order for a second similar 60 seater bus, at the same quotation price of $7500.  They were shown a new 60 seater bus and assured that Rockshade had 2 similar 60 seater buses.  The churches paid $2425 on 11 February.  The amount paid on 11 February, included a $500 MCZ deposit for a second bus and continued payments by UMC. After the $500 deposit, MCZ then paid $2360 on 14 February, $1715 on 3 March and $1205 on 4 March.  This is a total of $5780.  By 13 March, MCZ had 60 paid up travellers on its list and were going the next day to make final payments.  Through UMC, MCZ learnt that the 60 seater bus was not available.  Instead, a 57 seater was on offer.  MCZ had to disappointingly refund the last 4 travellers on the bus list.  MCZ then paid $1345 on 14 March, giving a total of $7125 paid to Rockshade.   Despite the disappointment of having to refund 4 travellers, MCZ went to view the 57 seater bus.  To their surprise and further disappointment, the bus is very old and said to be earmarked for scraping, on mileage of about 380000, has worn seats, dirty fridge, dirty toilet and is much less attractive than the clean 60 seater bus they had been shown on the day of paying a deposit.

On Wednesday 19 March, the MCZ Organising Committee of the hired bus to Botswana held a WhatsApp group call to discuss if Rockshade could supply a 60 seater clean bus as ordered or ask a sister company to bail them out or refund the money paid by MCZ for the wrong bus.  Rockshade through Lameck, the Senior Rental Agent and his boss, has so far said they do not wish to refund.  They also said they spent an amount they were not willing to disclose, on travel permit, insurance and fuel credit.

Judging by our shock on seeing the bus, we feel that the MCZ bus travellers are not going to be happy to travel on a 57 seater bus that is worn and dirty.  We had circulated pictures of the clean and new 60 seater bus.  And we are intitled to receive the promised clean new 60 seater bus or a refund.

We await your customer care response to our complaint.

Regards

MCZ Harare Bus Organising Committee.”

[13]	The letter says it all.  It was never responded to.   What this means is that the appellant never disputed the terms of the contract as spelt out by the respondent in the letter.  It never disputed breaching the contract.  It never disputed that it refused to refund the sum of $7125 despite its failure to avail the 60 seater luxury bus hired by the respondent.

[14]	It was only in deposing to the opposing affidavit that Lameck Mudzviti, the appellant’s rental agent, averred that the parties contracted for the hire of a 57 seater bus.  He totally denied that the parties ever contracted for the hire of a 60 seater luxury bus.  Critically, he never explained why the detailed, clear letter reproduced at para 11 of this judgment elicited no response from the appellant.  The appellant’s belated endeavour to aver the existence of a material dispute of facts on the back of the version that the parties contracted for the hire of a 57 seater bus only emerged in the opposing affidavit.  But the letter which we have adverted to in this judgment, produced by the appellant itself, and never responded to, proved that there was no material dispute of facts as to the terms of the contract between the parties and that the appellant breached those terms in the manner that we now know.

[15]	In Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) Makarau JP (as she then was) said at 136F:

“A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In casu, the founding papers in the application a quo are in line with the position set out in the letter of 21 March 2025.  That letter, despite ending with a request for a response to the distressed customer, was not met with a denial of what it portrayed the contract to be, and that the addressee had breached it.  It was never traversed by the appellant.  The latter-day bid to deny the contents of the founding affidavit, without tendering reasons why the same story was neither denied nor traversed when earlier contained in the letter could not leave the court a quo with no ready answer to the dispute between the parties.

[16]	By refusing to avail the 60 seater bus (having earlier misrepresented to the respondent that it had the bus) the appellant repudiated the contract.  The respondent acted properly in suing for a refund the moment the appellant indicated its unwillingness to be bound by the terms of the contract.  See Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd and Anor 2013(2) ZLR 309(S).  It had accepted the appellant’s repudiation of the contract.  The filing of the application demonstrates that the respondent had elected to seek a refund.  See also Thomas Meikle Stores v Mwaita and Anor 2007(2) ZLR 185(S).

[17]	Mr Nyathi properly conceded that the court a quo committed an irregularity in making provision for the execution of the order and the manner of such execution.

[18]	Th rest of the grounds of appeal are red herrings.  Nothing turns on them.  No good purpose is served in discussing them.

[19]	We share Mr Nyathi’s view that each party should bear its own costs of the appeal, and that there was no justification for ordering punitive costs a quo.

[20]	In the result, IT IS ORDEED THAT;

1. The appeal is partially allowed.

2. The portion of the court a quo’s judgment reading:

“…within 24 hours failure of which the Messenger of court is directed to attach the respondent’s bank account to recover the amount stated thereof plus costs on attorney and client scale” is set aside and substituted with the following:

“and costs of suit.”

3. For the avoidance of doubt the operative part of the judgment of the court a quo now reads:

“1. The application is hereby granted.

2. Respondent shall pay to the applicant the sum of US$7125 and costs of suit.”

4.	Each party shall bear its own costs of the appeal.

Chikowero J:………………………..

Zhou J:………………………I agree

Munangati and Associates, appellant’s legal practitioners

Kantor and Immerman, respondent’s legal practitioners