William BAIN & Company Holdings (Private) Limited V Tanyaradzwa Chapfika

### Preamble
1
HH 409-2012
HC 8401/10
WILLIAM BAIN & COMPANY HOLDINGS (PRIVATE) LIMITED
versus
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WILLIAM BAIN & COMPANY HOLDINGS (PRIVATE) LIMITED
versus
TANYARADZWA CHAPFIKA

HIGH COURT OF ZIMBABWE
PATEL J

Civil Trial

HARARE, 18 to 19 September and 8 November 2012

S. Njerere, for the plaintiff
S. Simango, for the defendant

PATEL J: The plaintiff herein claims an amount of US$15,390 as the outstanding balance for service and repair work carried out on the defendant’s Iveco minibus, together with interest at the rate of 2% per month and costs on a higher scale. The defendant disputes claim on the ground that the plaintiff’s work was defective and not in accordance with expected skills and standards.

The Evidence

Archington Simba Shoniwa is the foreman of the plaintiff’s Iveco workshop. He is a qualified artisan Class 1 in motor mechanics and has been employed by the plaintiff since 2003. He has had several training sessions in South Africa in the maintenance of Iveco motor vehicles. His evidence was that in April 2009 the plaintiff brought his Iveco minibus for its engine to be overhauled. The witness produced a bundle of workshop invoices [Exhibits 1 to 8] dating from September 2009 to June 2010 and covering all the jobs carried out on the defendant’s minibus. After the engine was overhauled, the minibus was returned to the defendant in proper working condition. He brought it back twice, in February and May 2010, with a broken crankshaft and faulty differential. These problems were unrelated to the previous work and arose from poor driving habits. The plaintiff attended to all three jobs diligently and professionally and the minibus was thoroughly tested before it was returned to the defendant on all three occasions. Under cross-examination, the witness stated that the plaintiff’s Iveco division was formed in October 2008 and since that time the workshop had handled about 20 minibuses similar to the defendant’s. He had worked on that minibus together with another qualified artisan (Diya). There were no other invoices for work on the minibus other than Exhibits 1 to 8. The normal procedure is for every customer to sign a job-card detailing the work to be carried out before proceeding with it. In this case, the defendant approved all three jobs verbally. The witness could not explain why he did not sign any of the job-cards. The minibus is presently at the plaintiff’s workshop pending the determination of this case.

Arthurnecious Dembedza has been the Marketing Executive of the plaintiff’s Iveco division since February 2009. That division has been dealing with Iveco engines since September 2008. His evidence was that the plaintiff’s claim is for US$15390 in respect of various engine overhauls and other repairs to the defendant’s minibus carried out since May 2009. He produced a statement of account dated 31 June 2010 for that amount [Exhibit 9] which has remained unpaid since that date. He also produced an acknowledgement of debt, signed by the defendant on 5 May 2010, for an amount of US$10,538 with interest at the rate of 2% compounded monthly [Exhibit 10]. The difference between the amounts stated on Exhibits 9 and 10 possibly relates to jobs and invoices raised after the latter was signed. When cross-examined, the witness stated that there is no provision for signature on job-cards and the normal procedure is for individual customers to give instructions to proceed in person or by telephone. He did not know whether or not the defendant had signed any of the job-cards. His minibus was first brought to the plaintiff’s workshop in May 2009 and has come back about 10 times for different problems. The defendant lodged a written complaint on 26 April 2010 regarding various break-downs and the delays in completing repairs [Exhibit
 11]. After that letter, the defendant was called in for discussions with the plaintiff’s Managing Director. The plaintiff’s practice is not to release repaired vehicles to its customers unless payment has been made or is otherwise provided for. It is probable that the defendant signed Exhibit 10 as a condition for having the minibus released to him.

Tanyaradzwa Chapfika is the defendant. He used his 2006 Iveco minibus as a transport operator since he purchased it in 2008 from South Africa. He testified as follows. In May 2009 the minibus developed an engine “knock”. He took it to the plaintiff as it was the only firm authorised to work on Iveco buses and because its staff professed to have the necessary skills and resources to repair his minibus. Only the plaintiff has the requisite computer software and spare parts for dealing with major repairs to Iveco vehicles. He was told that the job would cost US$4,300 and he instructed the plaintiff to proceed. The foreman promised to complete the work in 3 weeks but the minibus was only released much later. It still did not perform properly and the plaintiff undertook to repair it again. Thereafter, it had several breakdowns and was taken back to the plaintiff on each occasion. All in all, the minibus engine was overhauled three times. He had several meetings with the plaintiff’s General Manager (Mudovi) who agreed to have the minibus repaired without further charge. Eventually, in April 2010, Mudovi refused to release the minibus until he had paid for all the work done. He then wrote a detailed letter of complaint to the plaintiff’s Managing Director on 26 April 2010 [Exhibit 11] summarising the frequency of breakdowns and the delays in repairing the minibus properly. He was called in for a meeting and asked to sign an acknowledgement of debt as a condition for releasing the minibus. As he had no funds to litigate, he was eventually persuaded to sign Exhibit 10 on 5 May 2010 and the minibus was released on that day. Thereafter, the minibus was taken back to the plaintiff twice, in May and June 2010, because of further problems that were not attended to before. The plaintiff has since refused to release the minibus. The plaintiff is in breach of contract because it failed to carry out the first engine overhaul properly. He only agreed to pay for the first overhaul (and other minor unrelated repairs) and never agreed to pay for the subsequent jobs because they were carried out to rectify the original job. He has suffered considerable economic loss through loss of earnings from the minibus, approximately US$6,000 per month net, during the period that it remained in the plaintiff’s workshop.

Under cross-examination, the defendant stated that he was given the relevant workshop papers and invoices soon after the first overhaul job was completed. However, he did not receive any such papers for the subsequent jobs, except for small repairs which he paid for in cash. Apart from Exhibit 10, he signed an acknowledgement of debt for US$4,360 on 26 June 2009 in respect of the first job [Exhibit 12]. He also signed another memorandum on 15 December 2009 committing himself to pay a sum of US$10,172 [Exhibit 13] because the plaintiff was holding on to the minibus. Although he voluntarily signed Exhibit 12, he only signed Exhibits 10 and 13 in order to have the minibus released. Following the Court’s direction, the defendant produced the job-card and invoices for the first engine overhaul [Exhibit 14]. These were not among the documents produced by the plaintiff’s witnesses. He explained that the major parts and related labour charged under Exhibits 2 and 5, for the second and third overhauls, were virtually the same as those charged for the first overhaul. He paid a total of US$3,550 towards this job from June 2009 to March 2010. Paragraph 6 of the summons states that he paid the sum of US$2,561 but he paid a further US$900 which was not acknowledged. However, he failed to produce any receipts for the additional payment.

Whether Plaintiff or Defendant in Breach of Agreement


It is submitted for the plaintiff that it was the defendant who breached his obligation to pay in terms of the contract and his acknowledgements of debt. However, the defendant’s failure to pay does not necessarily mean that he breached the agreement between the parties. What needs to be tested is his assertion that the plaintiff failed to perform its part of the initial contract of repair.

What is not in dispute is the following. The plaintiff is the only authorised Iveco dealer in this country. It is also the only firm equipped with the requisite computer software and spare parts for major repairs to Iveco vehicles. In May 2009, the defendant took his minibus to the plaintiff with an engine problem. The plaintiff’s staff examined the vehicle and undertook to overhaul the engine. They professed to have the necessary skills and resources and did not query the condition or mileage of the minibus. After the first engine overhaul, the vehicle had several breakdowns. Within a period of 9 months, it was brought back to the plaintiff’s workshop for the engine to be overhauled on two further occasions, in September 2009 and February 2010. It was also brought back for other minor repairs. All of this is chronicled in the defendant’s letter to the plaintiff in April 2010.

The defendant testified that the minibus was never test-driven before it was released to him. He stated that he had signed various acknowledgements of debt as a precondition for the vehicle to be released and not as any confirmation that it was in good and working condition. This was in fact conceded by the plaintiff’s second witness. The defendant further testified that the major parts and related labour charged for the second and third overhauls were virtually the same as those that were charged in relation to the first overhaul. This evidence was not challenged at all under cross-examination.

In my assessment, the defendant’s evidence in all of these respects was very credible and not meaningfully displaced by either of the plaintiff’s witnesses. I therefore take the view that it was the plaintiff who breached the original contract of repair by having failed to carry out the first engine overhaul in a proper and efficient manner as it initially professed to be able to do.

Of course, this finding does not entirely exonerate the defendant from his obligations under the contract. He too must be held to be in breach for having failed to honour his undertaking to pay for the first engine overhaul and the other minor repairs carried out at his specific request. This aspect is addressed later in this judgment.

Whether Plaintiff Authorised to Make Further Repairs

After the production of Exhibit 14 by the defendant, it became evident that the plaintiff’s witnesses were totally confused about the job-card and invoices for the first engine overhaul. Exhibits 1 to 8 simply did not tally with their evidence as to the works carried out and the charges raised for them. They had in fact misled the Court and both counsel in that regard. In the event, this confusion was eventually cleared after appropriate intervention by the Court.

It is common cause that the defendant authorised the plaintiff to carry out the first engine overhaul as well as other minor unrelated repairs to the minibus. As for the second and third engine overhauls, he states that he was shown the relevant job-cards but denies having signed or been furnished with them. It seems to me that all of this is irrelevant. The defendant admits that on all occasions either he or his driver took the vehicle to the plaintiff and instructed the plaintiff’s staff to carry out the necessary repairs. It follows that he did authorise all of the works in question, notwithstanding the fact that he did not sign all the attendant job-cards. What really matters, however, is the basis upon which these jobs were carried out and the understanding between the parties in that regard.

The defendant’s evidence is that the second and third overhauls and other major repairs were necessary in order to rectify the first engine overhaul. My earlier finding as to the plaintiff’s failure in this respect obviously accords with that evidence. In effect, because of the plaintiff’s initial incompetence, the defendant had no option but to authorise the major works subsequent to the first overhaul.

Extent of Defendant’s Liability to Plaintiff

As a rule, an acknowledgement of debt constitutes a binding obligation by the signatory admitting his indebtedness for the amount stipulated therein. However, he is entitled to challenge that indebtedness by establishing that he signed the acknowledgement involuntarily or under duress or that the causa underlying it is vitiated by some extraneous circumstance negating his intention to be bound by his signature.

It is common cause that the defendant signed three separate acknowledgements of debt for different amounts at different times [Exhibits 10, 12 & 13]. He accepts that he voluntarily signed Exhibit 12 for the sum of US$4360.48 in respect of the first overhaul. However, he denies any liability under Exhibits 10 and 13 stating that he only signed these under duress in order to have the minibus released to him. This assertion is supported by the evidence of the plaintiff’s second witness who accepted that the acknowledgements of debt were necessary to release the minibus.

It is trite that a workman or contractor holds a common law lien or ius retentionis over the subject matter of his labour in order to secure his entitlement to payment for work done or services rendered. See Deven Engineering (Pvt) Ltd v Chiyangwa & Others 2007 (1) ZLR 58 (H) at 62. To this extent, I agree with plaintiff’s counsel that the plaintiff cannot be said to have exerted any unlawful pressure or coercion upon the defendant. However, it does not follow that the defendant signed all three documents voluntarily. Nor does it follow that the plaintiff repaired the minibus professionally and satisfactorily.


To reiterate my earlier findings, having undertaken to do so within a few weeks, the plaintiff clearly failed to perform the first engine overhaul properly and efficiently. It thereby breached the original contract of repair. Thereafter, precisely because of its incompetence, the minibus was brought back to the plaintiff for further overhauls and repairs. There being no other recourse available to the defendant, he had no option but to authorise these subsequent works. Moreover, apart from the first acknowledgement of debt, the defendant only accepted the second and third acknowledgements so as to secure the release of the minibus. The fact that he signed them does not necessarily render them binding and enforceable against him. On the evidence before the Court, it is clear that the defendant lacked the requisite *animus contrahendi* or commitment to be bound by his ostensible acknowledgement of liability.

In the event, I am satisfied that the defendant can only be held liable under the first acknowledgement of debt, which he signed voluntarily, in the amount of US$4,360.48 for the first overhaul. He is also liable, in accordance with his own admission, for the other minor repairs to the minibus that were totally unrelated to the engine overhauls. According to the documentary evidence produced by the plaintiff’s first witness, these repairs relate solely to the vehicle’s door handles [Exhibits 3 & 4].

**Disposition**

Turning to the exact extent of the defendant’s liability, the plaintiff admits that he paid the sum of US$2,561 towards the repair works to his minibus. The defendant states that he paid a total of US$3,550 and that he paid additional amounts of cash for the minor repairs to the vehicle. However, despite having had ample opportunity to do so, he failed to produce any receipts at the trial in order to substantiate his assertions. Without such supporting evidence, it must be accepted that he only paid the amount that the plaintiff admits. Putting all the figures together, the defendant is liable for the following amounts: - US$4,360.48 + US$24.99 + US$141.14 = US$4,526.61 less US$2561 = US$1,965.61.

As regards interest on the amount payable, the plaintiff’s claim for interest at the rate of 2.5% per month is founded on the terms stipulated in the third acknowledgement of debt [Exhibit 10]. For the reasons set out above, this claim cannot be sustained and must be rejected. The plaintiff is accordingly confined to an order for interest at the prescribed rate from the date of summons.

As for costs, although the plaintiff has not succeeded in its claim, it is clear that the defendant should have mitigated his liability by settling the full amount that he expressly acknowledged and admitted was due to the plaintiff. He failed to do so and, therefore, it seems just that each party should bear its own costs.

In the result, it is ordered that the defendant pay the plaintiff the sum of US$1,965.61 together with interest thereon at the prescribed rate, calculated from the 18th of November 2010 to the date of full and final payment. Each party shall bear its own costs.

Honey & Blanckenberg, plaintiff’s legal practitioners
Nyikadzino, Simango & Associates, defendant’s legal practitioners
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