DOWOOD SERVICES (PRIVATE) LIMITED
t/a BRADFIELD MOTORS
RAILINGS ENTERPRISES (PRIVATE) LIMITED
t/a PAROAN TRUCKING
SUPREME COURT OF ZIMBABWE
CHIDYAUSIKU CJ, GOWORA JA & MUTEMA AJA
BULAWAYO JULY 28, 2014
H Malinga, for the appellant
P Dube, for the respondent
MUTEMA AJA: This is an appeal against the judgment of the High Court in which summary judgment was granted against the appellant. After hearing argument by the appellant’s legal practitioner we did not consider it necessary to hear counsel for the respondent. We dismissed the appeal in its entirety with costs on the scale of attorney and client and intimated that the reasons for the dismissal of the appeal will follow. These are they.
The respondent supplied various consignments of fuel to the appellant over a period spanning from March 2011 to February 2012 at the latter’s specific instance and request. The agreement between the parties was that once the fuel has been sold by the appellant in respect of each consignment then payment is made for that particular consignment. During the period in question the appellant made erratic payments thereby incurring a debt amounting to US$58 335,00.
On 17 April 2012 the parties’ representatives drafted and signed an acknowledgment of debt couched in pertinent part in these words:
“RE: OUTSTANDING FUEL PAYMENTS BY BRADFIELD SERVICE STATION
…. Attached is a schedule of all deliveries made to Bradfield Service Station and corresponding payments, leaving a balance therefore of U$58 335,00 (sic) owing by Bradfield Service Station. The two parties have agreed that interest at the rate of one and half percent will be paid monthly by Bradfield Service Station.
With regards (sic) to the repayment of the capital owing, Mr Luwo has applied for a loan (sic) which was promised to him by the end of March 2012 and he is still waiting for it, should the loan not be received by him by the end of April 2012, the parties need to agree on an alternative repayment plan for the amount owing.