HARARE, FEBRUARY 13, 2014 & MARCH 31, 2015

T Tandi, for the appellant

Advocate T Mpofu, for the respondent                                                                                             

ZIYAMBI JA: This is an appeal against a judgment of the High Court  which ordered the appellant to pay to the respondent the sum of USD 301 000 for goods sold and  delivered  as well as interest thereon at the prescribed rate and costs.

The background facts are set out in the judgment of the court a quo.   The appellant, a company with limited liability incorporated in terms of the Companies Act [Chapter 24:03], is a mining conglomerate in Zimbabwe.  It owns, among others, the four mines which are the subject matter of this litigation which commenced with the issue of summons by the respondent as plaintiff in the High Court on 13 December 2013.  The claim as initially set out was made up of goods to the total value of US$360 764.41 as follows:-

US$78 485-61 delivered to Shamva Gold Mine;

US$ 245 467-82 delivered to How Gold Mine;

US$ 626-96 delivered to Redwing Gold Mine; and

US$ 36 184-02 delivered to Mazoe Gold Mine.

The claim was denied by the appellant.   In para 4 of its plea it averred:

“While the defendant accepts that certain electrical goods were purchased by it from the plaintiff, defendant denies   receipt of most of the goods to which the claim relates and puts plaintiff to the proof thereof.  The defendant further avers that plaintiff has been requested to provide a proper and correct summary of goods delivered in order for payment to be made but plaintiff is still to do so.  The defendant further denies that any proper demand for payment had been made by the plaintiff as alleged.”

During April 2012, three pre-trial conferences were held at which the parties attempted to reconcile the figures in order to arrive at some consensus as to the amount owing and a possible settlement. The figures having been so reconciled, the amount claimed was reduced to $301 342.73.  However, the parties were unable to agree on the outstanding issues and, on 30 April 2012, the matter was referred to trial on three issues, namely:-

Whether the defendant is indebted to the Plaintiff in the sum claimed or any other sum at all;

Whether the defendant received all the goods forming the subject of the plaintiffs claim; and

Whether due and proper demand for payment was made to the defendant prior to the issue of summons.

After a full trial in which evidence, including expert evidence from engineers, was led by both parties, the learned Judge made factual findings in favour of the respondent on the first two issues.  With regard to the third issue, he found that proper demand had not been made and that therefore interest should run from the date of summons.

In addition, the court considered, and dismissed, a belated attempt by the appellant to set off the amount claimed by the respondent against amounts allegedly owing to it in respect of some of the goods which it was claimed were returned for being substandard and unfit for the purpose for which they were purchased.  Set off was at no stage of the proceedings pleaded although it was canvassed in the proceedings.