Klen Karoo Seed Marketing (Pvt) Ltd v Agrilliance (Pvt) (571 of 2024) [2024] ZWHHC 571 (15 May 2024)

1 HH 571-24 HC 2210/20 KLEN KAROO SEED MARKETING (PVT) LTD versus AGRILLIANCE (PVT) LTD HIGH COURT OF ZIMBABWE KATIYO J HARARE, 14 & 15 May 2024 Trial A Dondo for the plaintiff Advocate D Trivadar for the defendant KATIYO J: The plaintiff issued summons out of this court for an order compelling the defendant to return three center pivots that defendant purchased from the Plaintiff pursuant to the contract made and entered into by and between the parties on 30 October, 2017. The basis of Plaintiff’ claim is that Defendant breached the agreement in that he was under obligation to farm and supply seeds to the Plaintiff for 4 years farming seasons but only did so for 2 years farming seasons and stopped for no good cause shown. It therefore follows that the Defendant failed to fully pay for the pivots meaning they remain the Plaintiff’s property. Plaintiff alternative claim is for the payment by the Defendant to the Plaintiff of the amount of ZAR2, 657, 428, 00 being the invoice value of the Pivots together with interest’s therein at the rate of 1% per month from 31 August, 2017 to the date of payment in full. The Defendant denied any breach of the contract and alleges full payment. To buttress his defence has put in a counterclaim and prayed for an order declaring the pivots are now the property of the defendant. The plaintiff led evidence from two witnesses whereas the Defendant led evidence from one witness. The only issue for determination as was agreed at Pre- trial conference is whether the defendant is in breach of contract by not paying. It was agreed at the PTC joint HH 571-24 HC 2210/20 minutes that the onus was on the plaintiff to prove that since the Plaintiff accepts that it had deducted the full purchase price of the pivots from the amounts owed to the Defendant. The plaintiff called James Glen, Regional Manager for the Plaintiff. He joined the plaintiff company well after the two agreements had been entered into. Save to insist that the Defendant had only paid for two seasons and that the accepted full payment had been reversed after realizing that the purported direct payment to South Africa (SA) had not materialized. He conceded that they had accepted full deduction of the full amount owing. He also referred to various e mails communication and WhatsApp messages sent to the Defendant which were mostly ignored. He did not have much knowledge about the background of the issues involved. He accepted that the Defendant had paid in full but that was an error. To give evidence next was Fungai Dambaza the Plaintiff Growers accountant. He too reiterated the evidence of the first witness. He had no knowledge of what transpired previously. Both witnesses had knowledge of the Defendant offering to pay in SA directly. All they were testifying to was hearsay as per their concessions. He also conceded to the plaintiff having accepted deducting the full payments of the pivots even though he later stated that it was an error. After plaintiff s case the Defendant opened its case wherein the Defendant gave evidence. He was the only witness who had personal knowledge of the background to the two contacts signed from 2017/2018 and 2018/2019 seasons. He insisted he had fully discharged his obligations as per contracts signed. He avers that the concessions by the plaintiff witnesses that the full amount had been deducted was not by error but it is a fact. He was adamant that by failing to fully demonstrate to the Court that position of changing goal post is a clear indication that the plaintiff has no claim against the Defendant. He then petitioned the Court to declare him the owner if the 3 pivots. The two counsels submitted their closing submissions and in brief as follows. The plaintiff believes they have proved their case on a balance of probabilities. Argues that HH 571-24 HC 2210/20 the contracts were clear and that the defendant had produced own exhibits to convince the plaintiff that full amounts had been paid. It was argued that Plaintiff in casu has managed to prove its case on a balance of probabilities. ROCK 1963 940 SA 147 A at 157 D, when the learned Judge adopted the formulation by Lord Denning in Miller v Mister of Pension 1947(2) Aller 272 to the civil standard of proof: It must carry a reasonable degree of probability but not so high as is require a in a criminal case. If the evidence is such that the tribunal can say we think it more probable than not, the burden is discharged but if the probabilities are equal, it is not. Similarly, the case of City of Gweru v Mbaluka HH93/14 Zimbabwe Electricity Supply Authority v Dera 1998(1) ZLR Miller v Minister of Pensions 1947(2) 2 Aller 372 and 374. Advocate Trivadar submitted that the plaintiff witnesses were credible and believable therefore their evidence should be relied upon. He averred that the two contacts were not fulfilled and as such the defendant was in breach. He further submitted that whilst the reconciliation shows that an amount of USD 222,006,77 which was the value of the three pivots had been initially deducted, the same amount was added back for reasons properly explained by both Mr. Glen and Mr. Dambaza in their evidence. Submitted therefore that the only question is whether or not Defendant paid for the pivots in full and from the evidence adduced, the defendant believes has established a probable case and deserves a prayer in his favour. Clause 2 of the Agreement for the purchase of pivots provides that the pivots shall remain the property of the plaintiff until such time that that the pivots are paid for in full and that during such period defendant shall not cede its rights title and interests within the pivots to third parties without prior written consent of plaintiff. On the counter claim the plaintiff submits that nothing was put forward to prove the counterclaim. Submitted that the claim is solely based on the Plaintiff initial deduction which the plaintiff say was later reversed. Contrary to the submissions by the Plaintiff the defendant insists that he fully discharged his obligations in terms of the contract as conceded by the plaintiff. The defendant further asserts that he never got the reversal of the deduction and such had HH 571-24 HC 2210/20 fully paid the amount thereby being entitled to retain the pivots as its own. The defendant accuses the Plaintiff of failing to call a Mr. Makoni as a witness since he was involved directly with the Plaintiff. According to the Defendant once a purchase price was deducted from amounts owing under Production Agreements, the Sale Agreement had been discharged by performance. Cited is a case of Binasa v Makhuthsana (1907) 24 SC 452 where it was held that “Set off applies automatically where parties have liquid claims against each other and once set off happens it cannot be undone”. Like in this case once the Plaintiff deducted the purchase price as payment it could not change its mind. For the purpose of present proceedings, a Mr. Dambaza confirmed that the reconciliation for 2017/2018 was done in 2021. Submitted that this document was generated to assist the plaintiff in these proceedings and was never sent to the defendant with the reversal deduction. The purchase price was deducted in around July-September 2018 and the purchase price reintroduced in October 2018. The plaintiff and his witness accepted that the reversal was done without defendant’s consent. The plaintiff reason for reintroducing the purchase price was based on the fact that the defendant had conversation with a Mr. Makoni, the managing director of the Plaintiff to the effect that the defendant would pay the purchase price in South Africa directly to the pivot supplier. Some weeks later Agro stated that they had not been paid and so the plaintiff reintroduced the purchase price. The defendant strongly objects to this explanation as there was no evidence adduced to support that position. No any documentation be they emails, letters or whatsoever. Argued that if it was true Mr Makoni believed the defendant had paid directly there would have been no need for another deduction by the plaintiff. It meant double payment. Further that the defendant had no business in paying Agro a Foreign entity with no contract in place. There was no notice of termination of sale agreement. No clause in the agreement was explicitly pointed out as has been violated. Further that it was conceded that the pivots are in 3 different positions. Submitted that as the defendant is not in possession of the pivots in question. In Dohne Construction P/L v Unki Mines HH138/16 this court held that …the court is enjoined to make orders HH 571-24 HC 2210/20 capable of enforcement. I was referred to the case of Swaziland Ex National Miners Workers Association v The Ministry of Education and Others (2168/09) (2010) SZHIC 258 where the court said: “In the case of Mansell y Mansell 195 (3) SA716 at 720-1, it was held that the court will not make orders which cannot legally and practically be enforced since they do not have any practical efficacy. I associate myself fully with that judgment in deciding the present application, I have to be convinced that the orders made can legally and practically be enforceable. An order which does not pass this test can only lead to ordinary chaos and confusion; such state of affairs cannot be allowed to happen”. It was submitted further, the Defendant tried to remove the pivots from the farms. However, the Defendant has been prevented from doing so and the Plaintiff was in complicit in preventing the Defendant from removing the pivots. This is because Mr. Glenn accepts the following: on 25 August 2020 he had been contacted by Dave Clements, a consultant for a company called Big Tul. This company produces seeds for the Plaintiff, Mr. Glenn and Mr. Clements know each other very well - since 2003. They worked together in Zambia and in Zimbabwe. Mr. Clements wanted to secure use of one of the pivots. He suggested to Mr. Glenn that the Plaintiff should write a letter conforming that the pivot was the Plaintiff's property and pending the outcome of the current proceedings, the Plaintiff consents to Big Tul's use of the pivots. The email correspondence between Mr. Clements and Mr. Glenn has been produced. Mr. Glenn sent this email to his lawyer (Mr. Dondo) who wrote a letter saying 'exactly' what Mr. Clements asked for. The Plaintiff did not produce this letter. Further, Plaintiff's Counsel who is the author of this undisclosed letter - did not address the issue at all. This is because, on Plaintiff's own case, allowing a third party to use the pivot was in breach of the Sale Agreement. As noted above, only the Defendant had - and continues to have the right to possession of the pivot. Argued that Mr Dambaza did not provide correct reconciliation. During cross examination he argued that the defendant was supposed to provide reconciliation, calculations and documentation. The defendant’s documents are provided in the defendant’s bundle of documents. A look at Mr Dambaza’s own documentation at HH 571-24 HC 2210/20 plaintiffs’ supplementary bundle pp58 establishes that the September 2018 reconciliation was USD55, 00. He included the 2018/2019 inputs into his 2018/18 reconciliation. The plaintiff’s two letters from February 2020-both of which are on Plaintiff letterhead-show different amounts owing. There was no meaningful challenge to these assertions. There were also concessions that the pivots were also being used by third parties without the defendant knowledge. It was accordingly prayed that the Plaintiff claim fails and automatically the defendant claim succeeds. From the evidence it is quite clear that the case is a simple as the issues for determination were straight forward. The counsels were also restricted to very few case authorities because there was nothing really to argue on. It was a question of “I paid” with the other saying you “you did not”. Given that there was some deduction made against the defendant by the plaintiff the onus shifted to the plaintiff who was supposed to prove nonpayment. The two witness for the plaintiff dismally failed to establish any tangible case against the defendant. The Court observed that there could have been some hidden transaction especially as it relates to some foreign players referred to in this case. There are some opaque explanations which are not clear to this court. The exhibits produced before this court were of not much use in enhancing the plaintiff case. Most of the issues were common cause no matter I did not refer to those exhibits. The two contacts were common cause and are not in dispute. The deduction made by the Plaintiff as full payment was not clearly explained how it was reversed as the documents also showed different amounts as submitted above. A Mr Makoni was not called to testify. He is the person who was said to be conversant with the SA issue. In his absence the issue remained unclarified. A contract should be specific and upon breach remedial measures should also be specific. In this case there was nothing to show that there were any measures taken upon realizing breach. The plaintiff seemed also to be leasing the same pivots to third parties during the subsistence of the contract with defendant. Dr Maja in his book of “Law of Contract in Zimbabwe” at page 63 defines “collusion” as an arrangement or HH 571-24 HC 2210/20 mutual understanding between the parties where they connive that one party will either commit, or pretend to commit an act in order that one party may obtain a remedy at law as if real injury has occurred. Such agreements are illegal and unenforceable. So, the issue raised regarding a third party wanting to enter a contact to get the pivots against a running contract points towards that potential by the plaintiff with another third party. I am not convinced by the Plaintiff case. He has dismally failed to establish his case especially the onus placed on him. The defendant’s case remained solid and unchallenged. The concession by the plaintiff of deduction of full payment in the absence of proper explanation does not help the plaintiff case. In any case the plaintiff witnesses had no personal knowledge of the events. By dismissing the plaintiff’s claim the counter claim, may succeed. The defendant fared very well in his evidence and have no reason to doubt him. Disposition In the result, IT IS ORDERED THAT: 1. The claim in the main and in the alternative by the plaintiff be and is hereby dismissed. 2. The counterclaim by the Defendant in main matter be and is hereby granted 3. The plaintiff to pay costs at ordinary scale. KATIYO J:………………………………………….. Dondo and Partners, plaintiff’s legal practitioners Whatman and Stewart, Defendant’s legal practitioners