BRENNAN’S DIESEL SERVICES (PVT) LTD
TENDA BUS SERVICES (PVT) LTD
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GOWORA JA & OMERJEE AJA
HARARE OCTOBER 16, 2012
E Morris, for the appellant
T Chiturumani, for the respondent
GOWORA JA: After hearing counsel in this matter we allowed the appeal with costs. We indicated that our reasons would follow. These are they.
The facts of this matter are that on 16 February 2010, the appellant issued summons claiming:
“1. Payment of the sum of ZAR 17353.00 being an amount due and owing by the Defendant to the Plaintiff in respect of services rendered and materials supplied by the Plaintiff to the Defendant at the latter’s special instance and request in repairing a number of fuel pumps on Defendant’s behalf during December 2008 and which sum, despite demand, Defendant has failed or refused to pay;
2. Interest thereon at the prescribed rate from the 27th January 2010, being the date of demand, to the date of final payment;
3. Costs of suit.”
The appellant, as its name suggests, provides service in the repair of diesel fuel pumps. The respondent is a registered public service transport operator. It is common cause that the appellant had on several occasions prior to December 2008 done business with the respondent.
On 19 December 2008 the respondent’s representative took two fuel pumps to the appellant’s premises for repair. The appellant’s personnel stripped and examined each of the pumps. After the fuel pumps were opened up a quotation for the work to be done in the sum of ZAR 24 000 was given to the respondent’s representative orally. On being informed of the quotation, the respondent requested the appellant to repair the two diesel pumps and offered to pay the cost of the repairs in instalments of ZAR 2000.00 per month to which the appellant agreed. A job card was then opened for the repair. The parts fitted to each pump are listed at the back of each job card. The pumps were repaired and collected by the respondent’s employees on 30 December 2008.
Subsequently the appellant sent two invoices to the respondent for ZAR 9000 and ZAR 15 000. The respondent paid a total sum of ZAR 6 647 and refused to pay the balance. The appellant issued summons for recovery of the same. The matter proceeded to trial at the conclusion of which the court a quo issued the following order:
“1. The defendant is absolved from the instance.
2. The Plaintiff shall pay the Defendant’s costs of suit.”
It is against that order that the appellant now appeals on the following grounds namely:
1. That the learned judge misdirected himself by absolving the respondent from the instance on the basis that the value of the spares and the labour costs had not been proved when such proof is only necessary under the Actio Legis Aquilia to prove that damages claimed are fair and reasonable;
2. That the learned Judge misdirected himself in failing to find that the appellant’s charges for work done had been accepted by the respondent who had made part payment towards them in acknowledgment of its acceptance;
3. That the learned judge erred in failing to take into account that the respondent’s witness in cross examination admitted owing the appellant the balance outstanding; and
4. That the learned Judge misdirected himself in failing to find that the respondent had established no defence to the appellant’s action at all and that the entire defence had been an abuse of court process.