Unilever South EAST Africa Versus Viewleen Investments (Private) Limited

### Preamble
HH 37-2007
HC 6520/05
UNILEVER SOUTH EAST AFRICA
versus
VIEWLEEN INVESTMENTS (PRIVATE) LIMITED
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UNILEVER SOUTH EAST AFRICA
versus
VIEWLEEN INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 13 JUNE 2007

Civil Trial

O Takaindisa, for the plaintiff
Mrs H Tsara, for the defendant

CHITAKUNYE J: The plaintiff ordered an Isuzu KB 250 double cab motor vehicle from the defendant in June 2005. The defendant is a car dealer. The price quoted to the plaintiff for the motor vehicle was $850 000 000-00. The plaintiff paid that sum on 1 June 2005. On 27 June 2005 the defendant, through its managing director, acknowledged receipt of the money and undertook to deliver the motor vehicle within 21 (twenty-one) working days. The motor vehicle was to be imported from South Africa. At the expiry of the twenty-one days there was no delivery. The defendant requested an extension of time within which to deliver. A further twenty-one days was granted but still no delivery was made.

The plaintiff thus sued the defendant for specific performance being the delivery of a double cab Isuzu 4 x 2 double cab motor vehicle or alternatively full repayment of the purchase price of the said motor vehicle at the current market value.

The defendant’s plea was to the effect that it encountered difficulties regarding delivery and when it finally tendered the motor vehicle the plaintiff rejected the tender as the tender was conditional upon the plaintiff paying a top up price.

The issues as determined at the Pre-trial Conference included:

1. whether or not the contract between the parties was a conditional contract;

2. whether or not the parties have duly performed their obligations under the contract; and
 3. whether or not the plaintiff is entitled to specific performance or alternatively damages equivalent to the current market value of the motor vehicle.

The plaintiff’s case was testified to by two witnesses. A number of documentary exhibits were also tendered into evidence.

The first witness for the plaintiff was Mr Conrad Rufaro Chibanda. He is a buyer with the plaintiff company. His evidence was to the effect that the plaintiff sought quotations from three motor vehicle dealers for an Isuzu KB 250 Double Cab motor vehicle. The dealers comprised Alfordies Car Hire (Private) Limited, Royal Car Sales and the defendant. The first two dealers provided quotations with lower purchase prices but with a longer delivery period of three to four months. The defendant provided a quotation with the highest price but with a shorter delivery period of twenty-one working days. The plaintiff opted to buy from the defendant because of the shorter delivery period.

The plaintiff placed an order with the defendant and paid the full purchase price on 10 June 2005. In this regard he tendered into evidence quotations as exhibits 1(a) and 1(b). The invoice from the defendant as exhibit 1(c) for $850 000 000-00. The plaintiff’s purchase order as exhibit 2. He confirmed that thereafter the defendant by its letter of 27 June 2005 acknowledged receipt of the payment and undertook to deliver the motor vehicle within twenty-one working days of the date thereof. That letter reads in the main:

“I write to acknowledge receipt of your cheque of $850 000 000-00 for the payment of a double cab Isuzu 250 double cab 4 x 2 wheel drive on 10 June 2005. I however therefore (sic) undertake delivery of the vehicle within twenty-one (21) working days from today ...”.

When no delivery came, Mr Chibanda said the plaintiff inquired with the defendant. Promises to deliver were made to no avail. Another period of twenty-one days was given but still no delivery was made.


Mr Chibanda said that initially the plaintiff had been made to believe that the motor vehicle they were buying was at the Beitbridge border post. During continued discussions with the defendant’s representatives, Mr and Mrs Matombo, the plaintiff was advised that, that motor vehicle had been taken by Newsnet as Newsnet and the defendant had resolved their differences over the motor vehicle. The plaintiff was promised that its motor vehicle was on its way. The plaintiff was then given the defendant’s supplier’s details in South Africa for them to confirm that their order had indeed been placed.

Using that information the plaintiff contacted the defendant’s suppliers Mitchell Export International (Pvt) Ltd in South Africa. The plaintiff was advised that its motor vehicle had indeed been paid for and would be released from the factory in a few days time. He tendered into evidence as exhibit 5, a letter from Mitchell Export International (Pvt) Ltd to York Motors to confirm this. The letter is dated 12 July 2005 and is addressed to Mrs Matombo. The main body thereof reads:

“Re: ISUZU FOR UNILEVER ZIMBABWE

Dear Mrs Matombo

Kindly inform Unilever Zimbabwe that the above vehicle has been paid for, and is due for release from the factory in the next few days”.

The Mrs Matombo addressed to therein is the managing director for Vieween Investments (Pvt) Ltd, the defendant. The Isuzu referred to is the motor vehicle in question.

As is evident, Paul Munro of Mitchell Export International (Pvt) Ltd confirmed that as at 12 June 2005 the plaintiff motor vehicle had been paid for.

Upon not receiving the motor vehicle, on 26 July 2005, the plaintiff wrote a letter to the defendant advising the defendant that it was now implementing its 5% discount condition on its order
 P001753. In that letter the plaintiff expressed exasperation at the defendant’s failure to deliver. That again yielded no delivery.

On 1 September 2005 the plaintiff wrote another letter to the defendant advising the defendant that the plaintiff had handed the matter to its legal practitioners to institute legal proceedings for the recovery of the total amount owed in the sum of $850 000 000-00 plus interest at the prevailing rates.

On 14 September 2005 the defendant’s legal practitioners responded by indicating that there had been some communication breakdown between their client and its suppliers in South Africa. This was apparently the cause for the non-delivery of the motor vehicle in July 2005 as had been promised.

As if to rebut that, the plaintiff received communication by e-mail, exhibit 8, from the defendant’s supplier indicating that the defendant had cancelled the order. The e-mail is dated October 10, 2005. It reads in part:

“I confirm that the order placed by Mrs Matombo of York Motors for an Isuzu Double Cab was cancelled by them some two weeks ago. ...”.

Further the writer went on to say:

“It is however not certain whether this was in fact the vehicle designated to your company since the details of the consignee had not been finalised at any stage. They may order your vehicle from a different supplier”.

When the above is read together with the other letter from the supplier dated 12 July 2005, exhibit 5, and one is left with little doubt that the order cancelled pertained to the motor vehicle the plaintiff had paid for. Mrs Matombo for the defendant did not deny that it is in fact the same motor vehicle.

Faced with the above the plaintiff issued summons in December 2005. The defendant entered appearance to defend on 3 January 2006.

It was only on 24 February 2006 that defendant’s legal practitioners wrote a letter advising plaintiff’s legal practitioners that the motor vehicle was now available. In that same letter a demand for a top up price to $8 050 000 000-00 was made. The letter reads:

“Our client advises that your client’s motor vehicle was finally delivered and it now costs $8 050 000 000-00 in line with the new price as advised to you earlier on …”.

Mr Chibanda confirmed that plaintiff was shown the motor vehicle but upon being asked to pay the top up price, rejected the tender. It was never part of the contract that there would be price adjustment.

Mr Chibanda categorically stated that the price they had been quoted of $850 000 000-00 was the full purchase price. He denied that there was any condition of a top up. As far as he was concerned, and as confirmed by other quotations from other dealers, the prices quoted included everything the plaintiff had to pay for it to take delivery i.e. it was the full purchase price.

He denied suggestions that there had been a verbal condition/term to the effect that when the motor vehicle finally arrived there would be calculations to determine the top up price. To his knowledge there was no provision for what the defendant termed statutory escalation in prices.

Mr Chibanda strenuously maintained that the plaintiff performed its side of the contract by paying the purchase price in full on 10 June 2005. It is the defendant who despite acknowledging receipt of the full purchase price and undertaking to deliver within twenty-one working days failed to do so.

In that light Mr Chibanda argued that the plaintiff is entitled to the delivery of the motor vehicle or alternatively the current market value of the motor vehicle.

On the current market value he tendered three quotations from three different car dealers for a similar motor vehicle. There were as exhibits 9(a), (b) and (c). He said the current value of $141 750 000-00 is reasonable.

The current value (as at the time of trial) was not really challenged by the defendant.


The second witness for the plaintiff was one Mr Stanley Makombe. He is the Chief Executive Officer of Royal Car Sales and also the current chairman of the Car Dealers Association under the Motor Trade Association.

He testified to the effect that, to his knowledge the quotations his company and others gave in exhibits 1(a), (b) and (c) were for the full purchase price of the Isuzu KB 250 Double Cab as at the time of these quotations.

He also testified on trade practices within the motor trade in his capacity as chairman of the Car Dealers Association. It was apparent that once a full purchase price was paid the risk transferred to the seller unless the specific agreement or contract provided otherwise.

Any variation of the price would only be possible were parties have agreed after renegotiation.

He thus maintained that in the face of exhibits 1(a), 1(b) and 1(c), exhibits 3, 4 and 5, the defendant could not lawfully ask for a top up price.

The defendant gave its evidence through its managing director Mrs Caroline Matombo. She confirmed entering into a contract with the plaintiff for the sale and purchase of the motor vehicle in question. She however said that the issue of a top up price was agreed upon with one Mr Kambarami who came to make payment for the motor vehicle. He is the person that she discussed with and agreed with on this condition of the contract.

Mrs Matombo’s contention is however not well made out. In the pleadings the defendant was not clear as to how this condition of a top up was included in the contract, i.e. whether it was verbal or in writing. The documents produced in court on the contract did not contain any such condition. If anything the impression created from all the documents on the price and payment thereof is that it was the full purchase price. Nowhere is the amount quoted and paid referred to as part payment or deposit or by some other term leaving room for further payments in future.


In his cross-examination of Mr Chibanda, counsel for the defendant put it to Mr Chibanda that the condition of a top up was given verbally. In her evidence Mrs Matombo initially gave that impression as well but later changed to now say that it was in fact written on one of the quotations/invoices given to the plaintiff. She now said that the defendant gave out two quotations/invoices one of which was written the condition of a top up. When asked to produce that quotation or invoice under cross-examination she could not. Had there been such a quotation or invoice with the condition in question that would surely have been a prime document for the defendant to discover and tender it into evidence.

Mrs Matombo also said that when she discussed the condition with Mr Kambarami, Mr Kambarami had agreed that he would personally pay the top up price as the motor vehicle was being bought for him. She now created the impression that the top up condition was an issue between the defendant and Mr Kambarami, these are the two parties who had agreed to it. But surely the contract was between the plaintiff and the defendant. If any condition of a top up or anything for that matter was to be agreed to it had to be with the plaintiff.

The difficulties in understanding Mrs Matombo, is further compounded by the fact that when asking for the top up the defendant did not ask for it from Mr Kambarami but from the plaintiff. If it is true that Mr Kambarami had said he would personally pay the top up, why then demand it from the plaintiff?

The issue of any agreement as on the condition of a top up was the defendant’s creation. The terms and conditions of the contract were as per the invoice and purchase order. Both the invoice and the purchase order show that the full purchase price was $850 000 000-00. In exhibit 3, Mrs Matombo confirmed receipt of the full purchase price and then undertook to deliver the motor vehicle within twenty-one working days.

Though she denied that the defendant or herself had ever told the plaintiff that the motor vehicle was at the Beitbridge border post, she unwittingly confirmed this when she indicated that she told the plaintiff that they could have the Newsnet motor vehicle that was at the border post. The plaintiff would not have known about this motor vehicle without being told by the defendant.

Mrs Matombo was clearly not being candid with the court.

She also confirmed that upon being pestered by the plaintiff she referred the plaintiff to her suppliers in South Africa. The supplier then wrote a letter dated 12 July 2005 to her (exhibit 5).

As already alluded to, that letter confirms payment for the plaintiff’s motor vehicle.

I am of the view that the plaintiff fully paid for the motor vehicle as per the agreement of sale. As a consequence of that payment the defendant undertook to deliver the motor vehicle within twenty-one working days. That period was extended by another twenty-one days but the defendant failed to perform its side of the bargain. The contract was not conditional. The defendant is clearly guilty of failing to discharge its obligations under the contract.

The next issue is whether or not the plaintiff is entitled to specific performance or alternatively damages equivalent to the current market value of the motor vehicle. The plaintiff prayed for specific performance as it had fulfilled its side of the contract.

The granting of an order for specific performance is within courts’ discretion. That discretion must however be exercised judicially. Court must examine the circumstances of each case in a bid to do justice as between the contracting parties.

In Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H) the late ROBINSON J had occasion to discuss at lengthy when the remedy of specific performance maybe granted. At p 30 thereof the honourable judge said:

“… it was certainly incumbent upon the defendant to allege in its plea the grounds upon which it relied in seeking to defeat the plaintiff’s claim for specific performance and to adduce evidence in support thereof evidence of the facts or circumstances upon which it asked court to exercise its discretion against the grant of the order prayed. …”.
 In *casu*, the defendant’s plea did not allege impossibility of performance or any particular facts or circumstances upon which it could argue that the court should exercise its discretion against the order prayed. No facts were testified to by Mrs Matombo on why defendant should not be ordered to perform its side of the contract. The defendant seemed content with its demand for a top up price upon which delivery would be made.

As there was no specific plea or defence against the prayer for specific performance it is safe to conclude that the defendant is ready to perform its side of the contract with no hindrance serve for its demand for more money.

The monetary loss or inconvenience to be suffered by the defendant as a result of its own delay or failure to perform was discussed in the *Intercontinental* case, *supra*, and was held not to be good enough a ground to deny a party a prayer for specific performance.

Indeed it would be a disservice to the business community if parties were to be allowed to willy-nilly use likely monetary loss as a ground to defeat a prayer for specific performance.

I can do no better than quote the late ROBINSON J in *Intercontinental* case, *supra*, at p 37 where he said:

> “I would wind up by saying that if the right of specific performance is to be shown to have real meaning to businessmen, then the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts, then don’t start crying if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract. In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of the breach. Businessmen at fault will therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them …”.


I fully subscribe to the above. Our present economic situation demands that parties adhere to the terms of the contracts as any award in damages may not do justice due to hyper inflation.

In *casu*, the defendant did not advance any good reasons why specific performance should not be granted. If anything denying specific performance would work to the benefit of the defendant as the plaintiff timeously paid the full purchase price and may now not be able to buy a similar motor vehicle if refunded the price it paid with interest.

An order for specific performance is the most appropriate in this case. The defendant is still in the business of importing motor vehicles for resale and should be able to supply one to the plaintiff.

**The last issue as on costs**

The plaintiff asked for costs on a higher scale. The plaintiff’s counsel argued that costs on a higher scale are justified because of the defendant’s conduct for defending the action when the case was so clear. The defence was not *bona fide*. He argued that the defendant has been dishonest and as was said in *Chieza v Sawyer* 1997 (2) ZLR 178 (S):

“… dishonesty in litigation is certainly a ground for an order of costs on a higher scale”.

Counsel argued that the defendant had been dishonest and by so doing has caused the plaintiff a lot of inconvenience and costs.

Counsel for the defendant contended otherwise. She contended that there was no justification for awarding costs on a higher scale to either party, due to the complexity of the legal issues arising for determination in this matter which made it necessary for both parties to pursue their cases to finality.

I however failed to see the complexity of the legal issues. This was a clear case of the defendant deciding not to honour its contractual obligations at the agreed price and instead demanding a top up. The defendant had undertaken to deliver the motor vehicle within twenty-one working days upon being paid the full purchase price. The defendant lamentably failed to do so. One would want to assume that the defendant had made a careful analysis of its situation before making the undertaking.

Its supplier as of 12 July 2005 indicated that the motor vehicle had been paid for and would be ready in a few days.

Inspite of all this the defendant could not prefer a consistent explanation for the long delay, which may then have resulted in it incurring costs it now sought to recover by unilaterally demanding a top up to $8 050 000 000-00 (old currency).

If the defendant had been sincere and had had genuine problems in delivering, then surely when the motor vehicle was finally delivered in February 2006 the defendant should have made a bona fide approach to the plaintiff with a proposal to top up the price instead of just making a demand as if it was the plaintiff’s fault that the defendant had not delivered in time.

The defendant did not certainly conduct itself as an honest business entity. The defendant’s version even in court was evidently untrue. For instance under cross-examination Mrs Matombo had the audacity to say that the $850 000 000-00(old currency) the plaintiff had paid was in fact a deposit when she knew this was not so. The defendant had not quoted a deposit but the full purchase price. To refer to that sum paid as a mere deposit, serves to show how far the defendant is prepared to go to avoid the truth.

I am inclined to accept counsel for the plaintiff’s argument for costs on a higher scale. This must also serve as a reminder to business persons and entities of the virtues of honest and openness in honouring their contractual obligations.

Accordingly judgment is granted for the plaintiff and against the defendant for:

1. the delivery of an Isuzu KB 250 Double Cab 4 x 2 diesel motor vehicle within twenty-one days after the date of this order; alternatively

2. payment in the sum of $141 750 000-00; and


3. costs on a legal practitioner client scale.

*Atherstone & Cook*, plaintiff’s legal practitioners  
*Takawadiyi & Associates*, defendant’s legal practitioners
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