TENDAI MUCHENJE

versus

G. AND M. PANEL BEATERS t/a SUPREME PANEL

 BEATERS & SPRAY PAINTERS

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 29, 30 July 2009 and 21 July 2010

Civil trial

J Mambara, for plaintiff

K Katupira, for defendant

CHITAKUNYE J:   On Wednesday 2 November 2005 the plaintiff was driving his Mazda 626 motor vehicle when he was involved in an accident at corner Wilson drive and Athlone road with a Nissan Hardbody motor vehicle registration number 696-572 B that was being driven by the defendant’s employee.

The defendant’s employee admitted liability for the accident. When the plaintiff left the scene to look for assistance he returned to find that the defendant had towed his motor vehicle to its garage. The plaintiff made a follow up and found his motor vehicle in the defendant’s garage.

The plaintiff sourced quotations for the repair of the motor vehicle from other panel beating garages. He was advised that the motor vehicle was damaged beyond economic repair. The defendant being in the panel beating and spray painting business offered to repair the motor vehicle to the plaintiff’s satisfaction. At the defendant’s instance the parties agreed that the defendant repairs the motor vehicle. The defendant came up with quotation number Q4456/05, exhibit 2, for all the work that needed to be done.

 The parties further agreed that after the repairs the motor vehicle was to be taken for a technical inspection by the Auto-mobile Association of Zimbabwe, herein after referred to as (“AAZ”). The inspection was intended to ascertain if work would have been done to standard. To this end they endorsed that agreement on the above cited quotation that:

 “To give AA report after repairs.’

The defendant proceeded to do the repairs albeit at a slow pace. In February 2006 the plaintiff went to collect the motor vehicle as he had become impatient at the pace repairs were being done. When he drove the motor vehicle in the company of an employee of the defendant he discovered that the motor vehicle would not engage into fifth gear. He returned the motor vehicle to the defendant. He later went to collect the motor vehicle in March 2006. On this occasion there were still some outstanding items to be attended to. The defendant allowed the plaintiff to collect the motor vehicle on the agreement that the plaintiff would return the motor vehicle later for the outstanding items to be attended to.

After collecting the motor vehicle the plaintiff said that he discovered that the repairs done were not up to standard hence this claim.

The defendant on the other hand contended that the repairs were done up to standard and an AAZ report was in fact obtained. That report confirmed that the repair work done in respect of the accident damages as reflected in Q4456/05 had been done to standard. The outstanding work noted in the report was not as a result of the accident in question and so the defendant was not liable.

As the parties could not agree the plaintiff sued the defendant for an order:

“Compelling the defendant to complete the repairs to standard;

Alternatively, for repair costs in the sum of $2 000 000 000-00(Zimbabwe dollars) or as valued by a valuer to be agreed upon by both parties.”

At trial that sum was amended to 5824-00 United States dollars.

In its plea the defendant denied that it took long to repair the motor vehicle contending that the repairs were done promptly and to the satisfaction of the plaintiff. The defendant also denied that there was any agreement that the plaintiff would use the motor vehicle while the defendant would attend to agreed outstanding areas.

Indeed in paragraphs 3.2 and 3.3 of its plea the defendant stated that:

 “3.2    When the plaintiff took away the motor vehicle it was not for temporary use as alleged or implied but that it signified the end of the defendant’s commitment regarding the motor vehicle.

 3.3      There were no agreed areas to be further attended to by the defendant as all the repairs had been completed to the plaintiff’s satisfaction.”

The defendant further denied that any demands were made after the plaintiff had taken the motor vehicle either by the plaintiff or the plaintiff’s insurers.

The issues for determination as agreed at the pre-trial conference were:

1. Whether or not the repairs to the plaintiff’s motor vehicle were effected in full and, if not, why?
2. Whether or not the defendant should be ordered to complete the repairs or to pay to the plaintiff the costs of the repairs.

The plaintiff gave evidence and called two witnesses in support of his claim. In his evidence the plaintiff chronicled how the accident occurred and how thereafter the defendant towed his motor vehicle to its garage. He confirmed being advised by other panel beating garages that the motor vehicle was damaged beyond economic repair. When he advised the defendant of this the defendant indicated otherwise and stated that they were going to repair the motor vehicle as they were also in the panel beating and spray painting business. Upon their assurance he agreed.

The parties went on to agree that after the repairs the defendant was to take the motor vehicle to AAZ for a technical inspection to assure the plaintiff that the motor vehicle had been repaired to standard. The defendant was required to furnish the plaintiff with such a report.

The plaintiff said that after that agreement he went away. He kept on checking for progress on the repairs. To his dismay no progress was made for quite some time. In February 2006 he went to collect the motor vehicle as he had become impatient at the time the defendant was taking to complete the repairs. On the first attempt he did not succeed as he realized after a short drive that the fifth gear would not engage. He returned the motor vehicle to defendant. 

On 16 March 2006 he went and collected the motor vehicle. There were still some outstanding repairs to be done. On collection the parties agreed that when the defendant secured the necessary parts the plaintiff would bring the motor vehicle for the repairs to be completed. When he later made effort to return the motor vehicle so that the defendant could complete the repairs the defendant refused to accept the motor vehicle. The defendant kept on giving varying excuses for not being ready to accept the plaintiff’s motor vehicle. Upon realizing the difficulties he was now encountering the plaintiff said he approached his insurers for assistance. An official thereof at some stage accompanied him to the defendant’s offices in an effort to resolve the issue. It was thereafter that the defendant accepted back the plaintiff’s motor vehicle. This was now in September 2006. The evidence of that acceptance is a check list done by the defendant’s employee when the motor vehicle was left, exhibit 3. A job card was prepared confirming the receipt for work to be done; this was tendered as exhibit 4. The plaintiff went on to say that on leaving the motor vehicle the defendant assured him that the motor vehicle would be ready for collection within three days. That was not to be. The motor vehicle was only released on 22 September 2006 after having been left there on 7 September 2006. Even then the motor vehicle was not satisfactorily repaired. He noted that some parts had in fact been removed and either not replaced or replaced with substandard parts.

As his efforts to have the defendant repair or complete the repairs to standard were not yielding any results he sought the AAZ’s opinion on the motor vehicle. AAZ furnished him with a report after an inspection of the motor vehicle. That report was tendered into evidence as exhibit 11. The report shows a number of defects and concludes by stating the general performance and general condition of the motor vehicle as poor.

The plaintiff denied the defendant’s contention that after the initial repairs the motor vehicle was ever taken to AAZ as per their agreement. He maintained that he was never furnished with any AAZ report by the defendant.

When asked about a third road traffic accident which the defendant said was the reason he brought back the motor vehicle to the defendant’s garage in September 2006, the plaintiff categorically denied that he was ever involved in another accident.

The plaintiff gave his evidenced well. He maintained his stance even under intense cross examination.

The next witness was Tendai Alexander Munyavi. He is an employee of Insurance Consultance Services. His evidence was to the effect that the plaintiff was their client. The plaintiff’s motor vehicle had been insured with them on a third party policy. He confirmed that after the accident the plaintiff had problems with the defendant. The plaintiff sought their assistance in having the defendant re-attend to his motor vehicle. In September 2006 he went with the plaintiff to the defendant’s offices where upon discussing with the defendant’s representative, the defendant agreed to take back the plaintiff’s motor vehicle for completion of repairs the plaintiff had been complaining about. The defendant through its representative promised that the motor vehicle would be ready in three day’s time from the day they took it there.

On his own Tendai A. Munyavi said that he made some follow up with the defendant on the repairs. These follow ups included making telephone calls to the defendant and on two occasions he tele-faxed handwritten memoranda to the defendant. The memoranda were tendered into evidence as exhibits 9 and 10.

Under cross examination Tendai A. Munyavi maintained his stance. He clearly was not shaken at all.

The next witness for the plaintiff was Harrison Shumbamhini. He is a holder of a class 1 panel beating certificate with ten years working experience in the industry. He came in as an expert witness. He testified that his duties involved assessing damages and estimates of the cost of repairs of such damages.

As regards this case his evidence was to the effect that he personally examined the motor vehicle in question. His findings were essentially to the effect that the motor vehicle had not been repaired to standard. Though he only examined the motor vehicle a few days before trial his findings were consistent with the plaintiff’s complaints and the AAZ report that the plaintiff had secured.

He made a comparative analysis of his physical examination of the motor vehicle, the AAZ technical report and quotation Q4456/05 done by the defendant. His conclusion after this analysis was that some of the damages reflected in the AAZ technical report coincided with those in quotation Q4456/05. He made particular reference to such aspects as the chassis, the center pillar, the damaged doors and fender.

It was thus his expert opinion that the repair work done on the motor vehicle was sub standard. When asked about reasonable repair costs he indicated that repair costs for such old motor vehicles were bound to be on the higher side because of the scarcity of spare parts. Dealers who had the spare parts tended to sell them at a premium. When shown the quotations the plaintiff had secured from some garages Harrison Shumbamhini indicated that these were reasonable in the light of the scarcity of the spare parts. He deemed the cost of US $5824-00 reasonable in the circumstances.

There was not much to challenge from his evidence. In my view he gave his evidence well.

The defendant thereafter gave evidence through Misheck Muzvongi and Tichaona Masike.

Misheck Muzvongi is a co-founder and director of the defendant’s company. He holds a class 1 journeyman in panel beating qualification. His evidence was to the effect that he first met the plaintiff in May 2005 when the plaintiff had been involved in an accident whereby his motor vehicle was hit from behind. The defendant repaired the plaintiff’s motor vehicle. He next met the plaintiff when the plaintiff’s motor vehicle was involved in a road accident with a motor vehicle driven by the defendant’s employee. After the accident he said the plaintiff and the defendant agreed that the defendant, as the liable party, repairs the plaintiff’s motor vehicle. The parties further agreed that after the repairs the defendant was to take the motor vehicle to AAZ for a technical inspection. To that end an endorsement was made on quotation Q4456/05 that: “To give AA report after repairs.” The repairs were to be done per the above quotation which captured all the repair work to be done as a result of the accident in question

It was his evidence that repairs were done to standard and the motor vehicle was taken for technical inspection at AAZ. An AAZ report was furnished to the defendant. That report was given to the plaintiff when he came to collect the motor vehicle. According to Misheck Muzvongi that report showed that the motor vehicle had been repaired to the required standard. After handing over the report to the plaintiff the defendant did not retain a copy there of hence the defendant was unable to produce a copy of the report in court.

 It was also his evidence that in September 2006 the plaintiff brought the motor vehicle back after he had been involved in another accident. The defendant repaired the motor vehicle to the plaintiff’s satisfaction and the plaintiff paid for the repairs.

As far as Misheck Muzvongi was concerned, there were no complaints of poor workmanship by the plaintiff from the time he took the motor vehicle to September 2006 when he came back after another accident. Naturally therefore, the claim by the plaintiff is hard to comprehend.  Misheck Muzvongi could however not produce any documents to show that after the repairs the plaintiff acknowledged satisfaction with the repairs. Equally there were no documents showing that in September 2006 plaintiff was involved in another accident or that he paid any money for the repairs done by defendant in September 2006.

The second witness for the defendant was one Tichaona Masike. He is the defendant’s employee who worked on the motor vehicle in question. At the time he was a panel beater. He has since risen to panel beater class 1 and is the defendant’s workshop foreman. His evidence was to the effect that at the time the plaintiff’s motor vehicle was brought for repairs in November 2005, he was a panel beater with the defendant. He is the one who worked on the motor vehicle. When he was through with the repairs one Gedion Muzvongi took the motor vehicle for a test drive. Gedion Muzvongi is a co-founder of the defendant company and is also a director of the defendant. There was not much to be gained from Tichaona Masike’s evidence as he did not directly deal with the plaintiff. He also could not confirm that after the repairs the motor vehicle was taken to AAZ for inspection or that such a report was ever obtained. What he could confirm was that when the plaintiff took the motor vehicle there were some outstanding items still to be attended to and the plaintiff was to return the motor vehicle later for those items to be attended to.

 As with Misheck Muzvongi, Tichaona Masike contended that the plaintiff came back in September 2006 after a third accident. On that occasion the motor vehicle was satisfactorily repaired. Unfortunately as was the case with Misheck Muzvongi, Tichaona Masike could not produce or refer to any documentary proof of such other accident or repairs. It was a case of his mere say so.

A careful analysis of the evidence and the manner it was given favors the plaintiff’s version. It is not in dispute that exhibit 2 formed the basis of the repairs to be carried out. It is also not in dispute that parties agreed that after the repairs the defendant was to take the motor vehicle to AAZ for a technical inspection and report on the work done. Such a report was to act as confirmation to the plaintiff that the repairs had been done to standard. The report was to be furnished to the plaintiff. Though the defendant’s witnesses said that such a report was in fact given to the plaintiff, neither witness could produce evidence of this. It was mere say so by the witnesses.

The plaintiff on the other hand contended that no such AAZ report was ever obtained or furnished to him. He was never given such a report either at the time he collected the motor vehicle or at any time thereafter. The plaintiff’s version is supported by the fact that even from the defendant’s evidence it is conceded that at the time the motor vehicle was collected there were some outstanding items to still be attended to and for which the plaintiff had been asked to return the motor vehicle later. According to the defendant the three outstanding items were the air conditioner, the complishment and the fitting of mud flaps.

Apart from producing the AAZ report the defendant could have called witnesses from AAZ or even the one who took the motor vehicle to AAZ but this was not done. The defendant could also have tendered the document the plaintiff signed showing that he was satisfied with the repair work. This the defendant did not do. According to Harrison Shumbamhini it is a practice in the panel beating business for clients to be asked to sign documents showing their satisfaction with the repairs done. In this case the plaintiff never signed any such document.

It may also be noted that there were a number of inconsistencies and contradictions in the defendant’s case which, in my view, tended to further discredit the defendant’s version. For instance in paragraph 3 of its plea the defendant denied that it took long to repair the plaintiff’s motor vehicle and that as a result of such delay the parties agreed that the plaintiff would use the motor vehicle while the defendant would attend to all the agreed outstanding areas to the satisfaction of the plaintiff. In its plea the defendant contended that the motor vehicle was repaired in full and that when the plaintiff took the motor vehicle it was not for temporary use but it signified the end of the defendant’s commitment regarding the motor vehicle.

In paragraph 3.3 the defendant pleaded that:-

“There were no agreed areas to be further attended to by the defendant as all the repairs had been completed to the plaintiff’s satisfaction.”

However when the plaintiff’s version was put to  Misheck Muzvongi here in court he admitted in his evidence that there was indeed an arrangement for the plaintiff to bring  the motor vehicle for outstanding items to be attended to. He in fact went on to mention some of the outstanding items. Under cross examination Misheck Muzvongi could not explain the contradiction between what was stated in the plea and his admission that such an arrangement was indeed made.  Misheck Muzvongi went on to state that the plaintiff was pressing that he needed to use the motor vehicle hence the motor vehicle was released to him before full completion. Had the defendant repaired the motor vehicle promptly surely the plaintiff would not have been impatient.

Further on, Misheck Muzvongi told court that the plaintiff took the motor vehicle for good at the end of February or beginning of March 2006. However in paragraph 5 of the defendant’s supplementary synopsis of evidence it is stated that repairs were completed on 16 February 2006 and the motor vehicle was taken to AAZ for inspection. The plaintiff thereafter took the motor vehicle.

It may further be noted that in his evidence–in-chief Misheck Muzvongi stated that when the plaintiff took the motor vehicle for the first time the AAZ report had been obtained. Under cross-examination he now said that the AAZ report was only obtained after the plaintiff had come back with the motor vehicle and the three outstanding items had been attended to. Misheck Muzvongi and Tichaona Masike were not agreed as to who took the motor vehicle for a test drive. They also were unable to say when and who had taken the motor vehicle to AAZ for inspection.

Misheck Muzvongi also gave evidence to the effect that when the plaintiff brought the motor vehicle in September 2006, they told him that the motor vehicle would be ready in three days time and that was met. However from the defendant’s own evidence, as portrayed in documents tendered, the motor vehicle was at the defendant’s place for much longer than the three days.

I am of the view that the inconsistencies and contradictions in the defendant’s case make the defendant’s evidence unreliable and at best a patched up version designed to avoid liability.

I am of the view that the plaintiff’s evidence was the more credible. The plaintiff’s evidence was consistent and logical in its sequence.

I thus find that the plaintiff’s motor vehicle was not repaired to standard. No AAZ report was obtained by the defendant at all as the motor vehicle was never taken there for inspection. The defendant simply took advantage of the plaintiff’s impatience due to the defendant’s delay in completing the repairs to release the motor vehicle to the plaintiff without the AAZ inspection.

The defendant is found liable on the first issue.

The second issue is whether or not the defendant should be ordered to complete the repairs or to pay the plaintiff the costs of the repairs.

The plaintiff’s claim was for an order compelling the defendant to complete the repairs as listed in paragraph 11 of the plaintiff’s declaration.

Alternatively,

Repair costs of the items listed in paragraph 11 of plaintiff’s declaration in the sum of $2 000 000 000-00 or as valued by a valuer to be agreed upon by both parties.

The prayer to compel the defendant to complete the repairs was not amended. The plaintiff only amended the quantum in the alternative prayer to a sum of USD5824-00

The question of specific performance was not argued at lengthy by counsel for both parties. Equally during trial not much was said about the practicality of such an order. What was clear from the evidence was that the defendant is still in the panel beating business and so there was no case of impossibility of performance. It was not disputed that the defendant was still able to repair the motor vehicle to the appropriate standard.

The factors to consider in deciding whether to order specific performance or not have been dealt with in a number of cases.

In Intercontinental Trading (Pvt)Ltd vNestle Zimbabwe (Pvt)Ltd 1993 (1) ZLR 21 (H) ROBINSON J had occasion to deal with factors to be considered in cases were specific performance is sought. The learned judge quoted in extensor from the judgment of HEFER JA in Benson v South Africa Mutual Life Assurance Society 1986 (1) SA 776 (A) at 782D-J and 783A-F thus:

“In Haynes vKing William’s Town Municipality (supra) at 378 DE VILLIERS AJA dealt with the matter in the following terms:

‘it is correct, as Mr. Miller states, that in our law a plaintiff has the right of election whether to hold a defendant to his contract and claim performance by him of precisely what he had bound himself to do, or to claim damages for the breach … This right of choice a defendant does not enjoy; he cannot claim to be allowed to pay damages instead of having an order for specific performance entered against him….’

It is, however, equally settled law with us that, although the court will as far as possible give effect to a plaintiff’s choice to claim specific performance, it has a discretion in a fitting case to refuse to decree specific performance and leave the plaintiff to claim and prove his id quod interest. The discretion which a court enjoys, although it must be exercised judicially, is not confined to specific types of cases, nor is it circumscribed by rigid rules. Each case must be judged in the light of its own circumstances”.

Further on the judge went on to say that:-

 “This does not mean that the discretion is in all aspects completely unfettered. It remains after all, a judicial discretion and from its very nature arises the requirement that it is not to be exercised capriciously, nor upon a wrong principle (Ex parte Neethling (supra at 335)). It is aimed at preventing an injustice – for cases do arise where justice demands that a plaintiff be denied his right to performance – and the basic principle thus is that the order which the court makes should not produce an unjust result which will be the case, e.g., if, in the particular circumstances, the order will operate unduly harshly on the defendant.”

Other circumstances where court may not grant an order for specific performance include when performance has become impossible. Where performance is possible there are other factors that may still influence court not to grant an order for specific performance. In Zvoma vAmalgamated Motor Corporation (Pvt)Ltd. 1988 (1) ZLR 60 (H) ADAM J quoted with approval the words of DE VILLIERS AJA in Haynes vKing Williamstown Municipality supra wherein at  p 378-380 the learned JUDGE said that:-

“As examples of the grounds on which the courts have exercised their discretion in refusing specific performance, although performance was not impossible, may be mentioned: (a) where damages would adequately compensate the plaintiff; (b) where it would be difficulty for the court to enforce its decree; (c) where the thing claimed can readily be bought anywhere; (d) where specific performance entails the rendering of services of a personal nature…(e) where it would operate unreasonably hardly on the defendant, or where the agreement giving rise to the claim is unreasonable, or where the decree would produce injustice, or would be inequitable under all the circumstances…”

Where specific performance is claimed the onus is upon the defendant to establish the facts and circumstances which court should consider in the exercise of its discretion to refuse specific performance.

Incasu the defendant did not allude to impossibility of performance nor to any undue hardship it may suffer if specific performance were ordered. The defendant did not even indicate how much it would cost it to complete the repair work as demanded by the plaintiff. Clearly in my view the defendant should be ordered to complete the repairs in terms of their agreement.

In terms of their agreement parties had agreed on a technical inspection by AAZ and the issuance of a certificate of fitness by AAZ.  AAZ was coming in as an independent or neutral assessor to confirm the quality of work done by the defendant. That should still be the case.

On the alternative claim for damages the plaintiff tendered quotations from three panel beating garages indicating what it would cost for the motor vehicle to be repaired to the required standard. The three quotations were as follows:

(a) J.ZIVIRA MOTORS (PVT) LTD             -           USD 5795-00

(b) J.J. PANEL BEATERS                            -           USD 4175-00 and

(c) CHRISFREIGHT (PVT) LTD                  -           USD 5824-00

The plaintiff opted for the quotation for USD5824-00 as the reasonable cost for the repairs.

In its evidence the defendant did not tender any quotations on the cost of repairs or value of the motor vehicle to counter the plaintiff’s quotations. Though it was stated that repair costs may be in excess of the value of the motor vehicle there was no indication as to the magnitude of the difference and whether such difference would be unreasonable in the circumstances.

In Erasmus v Davis 1969 (2) SA 1 (A) at p 21D MULLER AJA had this to say on the use of cost of repairs to assess appropriate damages:

“...the cost of repairs is often used as a yardstick to measure damages, it cannot be used as a yardstick in circumstances in which it would not be an appropriate method of assessing damages. It cannot be a proper yardstick in a case where it is not economical to repair the vehicle and the plaintiff claims the estimated cost of repairs without bringing into account the salvage of the value of the vehicle…”

In casu the plaintiff did not bring the salvage value of the motor vehicle. He never the less seemed to acknowledge that the repair costs could be higher than the actual value of the motor vehicle due to scarcity of spare parts for the motor vehicle and not that it would make him any richer

The other factor is the defendant’s delay in completing the repairs. Had the defendant complied with its undertaking at the time current costs of repairs could have been avoided. In any case it is not in every case where costs are higher that the claim may be deemed untenable as the circumstances of a case may dictate otherwise.

 In Leighton vEagle Insurance Co. Ltd & Ors 2002 (2) ZLR 592 (H) the plaintiff was injured in an accident involving a motor cycle and a motor vehicle in 1996. He was the driver of the motor cycle. The other motor vehicle was being driven by the second defendant. The first defendant was the insurer of the motor vehicle. The plaintiff claimed, among other things, the cost of repairs of the motor cycle. The defendant agreed to pay for repairs to restore the motor cycle to the plaintiff’s satisfaction. A sum of Z$ 50 000-00 was spent on repairs but the plaintiff was not satisfied with the repairs. He returned the motor cycle and claimed the sum of Z$850 000-00, being the current cost of the spares. At the time of issuance of summons the value of the motor cycle was not more than Z$ 95 000-00. After five years from date of summons the first defendant tendered Z$150 000-00 as replacement value for the motor cycle. After a careful consideration of the law on the assessment of damages in such cases SMITH J at p.597 B-D stated that:

”However, in the light of the high levels of inflation in this country over the last two years, such an offer could not be accepted as reasonable. Since the first defendant only filed its plea on 14 March 2002, more that five years after summons was issued, I consider that a departure from the normal yardstick is required. The present day values of goods such as motor cycles have escalated tremendously since 1996. I consider that in all the circumstances, the claim by the plaintiff is reasonable, having regard to the value of things today.”

Incasu, the defendant admitted liability for the damage to the plaintiff’s motor vehicle on the date of the accident and offered to repair the motor vehicle to AAZ approved standard. The defendant did not do so. The cost of repairs has escalated as a result of inflation and dollarisation that was beyond the plaintiff’s control. Restricting the plaintiff’s damages to the value of the motor vehicle as at the time of the accident would in my view do injustice to the plaintiff yet it is the defendant who, firstly, did an incomplete sub-standard job. When the plaintiff expressed dissatisfaction with the work done the defendant would not accept to re-do the work. It is clearly the defendant’s fault that up to this day the motor vehicle has not been repaired to AAZ approved standard.

The defendant’s contention that the repair costs exceed the value of the motor vehicle should not disentitle the plaintiff to recover his motor vehicle in the condition it was in before the accident. In any case as has already been alluded to the defendant did not proffer any concrete evidence in support of its contention. The plaintiff is entitled to reasonable repair costs as evidenced by the quotations he tendered into evidence.

From the three quotations that the plaintiff tendered he opted for the quotation with the highest sum. He did not explain why he opted for the highest figure when another garage could do the work for a lesser amount. I am of the view that he is entitled to an average of those figures. The three figures are USD5795-00, USD4175-00 and USD 5824-00. The average of the three figures is USD5264-00. It is my view that with such an amount he should be able to get the motor vehicle repaired to his satisfaction.

Accordingly judgment is hereby entered against the defendant and for the plaintiff as follows:

1. The defendant is hereby ordered to complete repairs to the plaintiff’s Mazda 626 motor vehicle as per paragraph 11 of the plaintiff’s declaration within thirty (30) days of the date of this order to the plaintiff’s satisfaction. Upon completion of the repairs the defendant is ordered to take the motor vehicle for a technical inspection by the Auto Mobile Association of Zimbabwe and a report obtained there be served on the plaintiff.

2.    In the event that the defendant fails or neglects to comply with clause (1) above, the defendant is ordered to pay repair costs to the plaintiff in the sum of USD 5264-00 with interest at the prescribed rate from the date of this order to the date of full payment.

1. The defendant shall bear the costs of  suit.

J Mambara & Partners, plaintiff’s legal practitioners

Scanlen & Holderness, defendant’s legal practitioners