Judgment No. HB 119/2002

                                                                                    Case No. HC 924/2002

FREEZEWELL REFRIGERATION

versus

BARD REAL ESTATES

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 26 JULY & 17 OCTOBER 2002

N Ndlovufor the applicant

J Sibandafor the respondent

Opposed Matter

            CHIWESHE J:          The applicant sued the respondent under case number

758/02 for payment of the sum of $403 156,00 being the balance for work, labour and

materials supplied to the respondent by the applicant between January and February

2002.

            The respondent company had contracted the applicant to repair air

conditioners at Forestry Commission Building in Bulawayo.  It had also contracted

the applicant company to repair doors for that building.  At the time of the agreement

no quotations had been supplied indicating the cost of the work to be done.  Applicant

duly performed its part of the contract and tendered an invoice in the sum of        

$300 400,00 for the repairs of the air conditioners and $244 980,00 for the repair of

the doors.  The total cost of the repairs amounted to $545 380,00.  Of this amount the

respondent company has paid $153 624,00.  In addition the applicant sought to

recover an amount of $11 400,00 being travelling expenses to Harare in pursuit of

payment.

            The respondent entered an appearance to defend the matter and filed its plea. 

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In its plea the respondent admits that applicant carried out the work it was contracted

to do but contends that the charges raised by the applicant were duly unreasonable and

exorbitant, and that they required applicant to prove the reasonableness of those

charges.  The respondent also stated that the sum of $153 624,00 had been paid by

their Harare head office owing to undue pressure exerted upon them by the applicant

and that the said head office did so without the full background knowledge of the

facts.  Therefore that payment had been made in error as respondent had queried

applicant’s invoice from the time of its presentation.   Further the respondent avers

that travelling to Harare had not been part of the agreement and that the applicant did

so of its own accord.  As such respondent was not liable for any expenses incurred in

that regard.  The respondent therefore consented to payment of “proven reasonable

charges”, while denying the present charges.  He denied liability for the present charges

on the grounds that they were exorbitant.

            Notwithstanding this plea which clearly discloses a defence on the part of the

respondent the applicant proceeded to apply for summary judgment.  It cannot be said

that the applicant has established a clear and unanswerable case upon which an

application of that nature can be granted.  The respondent is entitled to query the

reasonableness of the charges levied against it.  The applicant alleges that an officer

of the respondent had verbally agreed to meet the charges.  This is denied by the

respondent, thereby giving rise to a factual dispute which cannot be resolved without

hearing viva voce evidence.  Further it is obvious that in the circumstances the

sum claimed cannot be regarded as liquid as it is subject to proof.

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            Accordingly there is absolutely no merit in this application.  The application is

hereby dismissed with costs on the higher scale.

Lazarus & Sarifapplicant’s legal practitioners

Job Sibanda & Associatesrespondent’s legal practitioners