Nyaungwa v JEFFM Auctions (Pvt) Ltd (146 f 2024) [2024] ZWHHC 146 (8 April 2024)

1 HH 146-24 HC 253/21 WALTER NYAUNGWA versus JEFFM AUCTIONS (PVT) LTD and FORESTRY COMMISSION HIGH COURT OF ZIMBABWE CHITAPI J MUTARE; 16 November 2023 & 8 April 2024 Civil Trial Denovo Hearing Plaintiff in person Mr D Tandiri, for the 1st defendant Mr B Majamanda, for the 2nd defendant CHITAPI J: This matter is a denovo hearing by order of the Supreme dated 15 May 2013 following an appeal against the judgment of MUZENDA J which the court rendered on the same case on 30 September, 2023 after trial. The judgment of MUZENDA J decided the case in favour of the plaintiff and the defendant noted an appeal. The Supreme Court disposed of the appeal by its order which was worded as follows” “IT IS ORDERED THAT 1. By consent: (a) The appeal be and is hereby allowed with each party paying its own costs. (b) The judgment of the court a quo be and is hereby set aside. 2. By virtue of the power vested in this court by s 25 of the Supreme Court Act, [Chapter 7:13], the proceedings before the court a quo are hereby set aside. 3. The matter be and is hereby remitted to the court a quo for a trial denovo before a different judge” The background to the hearing de-novo is therefore explained. HH 146-24 HC 253/21 INTRODUCTION AND BACKGROUND 2. The plaintiff is a self-acting party and a businessman in Mutare. The first and second defendants are body corporates duly incorporated and registered under the laws of Zimbabwe. The first defendant is said to be domiciled in Mutare and the second defendant in Harare. Significantly, the second defendant carries out the business of auctioneer. At all material times the second defendant was engaged as auctioneer by the first defendant to dispose by public auction various of its movable property in various cities. In Mutare where the plaintiff participated and purchased certain goods some of which involve the dispute on trial, the auction was held on 24 July 2021. 3. In this action the plaintiff claimed that he purchased at the auction certain property as detailed later in this judgment. When he sought to take delivery of the goods which he had purchased and left in the custody and control of the first defendant, he found that the goods had been tempered, vandalized or neglected with the result that their condition was no longer the same as they had been upon purchase at the auction. The plaintiff claimed that he ended up having to effect repairs to three of the purchased items of goods at a cost of a total of US$74 807.00. 4. The plaintiff claimed from the first and second defendants as set out in para 10 of the declaration as follows: “10. As a result of first and second defendants, negligence neglect or deliberate vandalization of the goods purchased by the plaintiff from first defendant, the plaintiff suffered damages in the sum of US$74 807.00 which amount despite demand the first and second defendant faded (sic) refused and/or neglected to pay.” 5. The plaintiff pleaded alternative relief. Again, I find it convenient for purposes of this judgment to outlay the alternative claim and relief in the words of the plaintiff as set out in para(s) 11-12. It is stated: “11 Alternatively On or about the 24 of July 2021 plaintiff and first and second defendant entered into an agreement of sale at a public auction in terms of which plaintiff purchased from first defendant the following items: (a) Hot press system at US$7500.00 (b) Sanding machine at US$1500.00 (c) Glue Spreader at US$1500.00 12. Upon taking delivery of the items purchased from first defendant aforesaid, it was discovered that the goods were not fit for purpose (sic) and that they needed repairs as follows: HH 146-24 HC 253/21 (a) Hot press system US$59 807.00 (b) Sanding machine US$7500.00 (c) Glue spreader US$7500.00 Making a total of US$74 807.00 WHEREFORE plaintiff claims against the first and second defendant jointly and severally the one paying the other being absolved.” DEFENDANTS PLEAS 13. The first and second defendants filed their pleas. Both defendants denied liability on the plaintiff’s claim. The first defendant pleaded that the sale of the goods to the plaintiff was a voetstoots sale. The first defendant averred that once the sale had been concluded all risk associated with destruction, damage or loss passed to the plaintiff as the buyer. The first defendant pleaded that the issue of who had custody of the goods was immaterial as upon the conclusion of the sale, risk passed to the plaintiff. The first defendant however, then also pleaded a denial that the goods were damaged. The first defendant also pleaded that it made no undertakings on the quality of the goods or otherwise. 14. The second defendant averred that the plaintiff only made the payment out of time and more than a month after the sale. It pleaded that risk passed to the plaintiff from the date of auction or sale in terms of the sale conditions. The second defendant further pleaded that the plaintiff could not collect or have access to the purchased goods because he had not made payment and that on making payment access to the goods was granted to the plaintiff. The second defendant also pleaded that the sale was a voetstoots sale of used goods which were dilapidated. Lastly, the second defendant pleaded that the plaintiff was aware of the voetstoots nature of the sale and that the plaintiff was duly advised of that fact. PRE-TRIAL CONFERENCE AND AGREED ISSUES FOR DETERMINATION 15. The parties held their pre-trial conference before CHAREWA J on 14 July 2022. Settlement failed and the matter that to be referred for trial. The agreed issues as per the joint pre-trial. HH 146-24 HC 253/21 “1. ISSUES (a) Whether or not the plaintiff was prevented from collecting his goods after the conclusion of the sale? (b) If indeed the plaintiff was prevented from collecting his goods, whether or not the defendants owed a duty of care to make sure that the goods did not degenerate or deteriorate while in their custody? (c) Whether or not the goods degenerate or deteriorate while in the custody of the defendants after the sale. (d) If so, what is the quantum of the loss or damage suffered by the plaintiff as a result of the deterioration or damage of the goods. (e) Who is liable to pay costs of suit.” The task of the court is to determine whether on the balance of probabilities the plaintiff has succeed in his claim regard being had to proof of the agreed issues. EVIDENCE OF THE PLAINTIFF 16. He confirmed on oath the common cause fact that he participated in the auction sale conducted by the second defendant on behalf of the first defendant on 24 July 2021. He purchased the following items on acceptance of his bids by the second defendant, namely sanding machine for US$1500.00; hot press system for US$7500.00 and glue spreader for US$100.00. He testified that he paid the purchase price in three payments on 24 July 2021; on 6 August 2021 and on 7 August 2021. Invoice 398 generated by the second defendant dated 24 July 2022 detailed the purchase detailed as: “Lot 15 sanding machine $127 500.00 Lot 16 Hot press system $637 500.00 Lot 18 Glue Spreader $85 000.00 The total was $850 000.00 With add ons the total amount of the invoice was $1265 225.00 reflected as having been paid by several amounts the last payment of which was $665 225.00 stated to have been paid on 7 August 2021. 17. The plaintiff also produced invoice reference number 367 dated 24 July 2021 showing the purchased items however denominated in $USD in the sum of an invoice total for the goods as HH 146-24 HC 253/21 $10 000.00 and grand total of USD $14885.00 When converted to RTGS the equivalent was $1265 225.00 18. The plaintiff testified that the second defendant denied him the right to take delivery of the purchased goods albeit he had made full payment on the invoiced amount with the last payment made on 7 August 2021. He testified that he was only able to collect the goods after filing an urgent applicant under case No. HC 159/21 to compel the