FOOLPROOF ENTERPRISES (PRIVATE) LIMITED

versus

SURFACE INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 1 and 14 July 2010

Civil Trial

S Tsaurayi, for the plaintiff

P Makuwaza, for the defendant

KUDYA J:      The plaintiff issued summons out of this court on 14 October 2009 claiming payment in the sum of US$8 769-44 for coal delivered and supplied to the defendant at the defendant’s special instance and request, interest from the date of the service of summons to the date of payment in full, collection commission and costs of suit. The action was contested.

The plaintiff averred in its particulars of claim that on 23 September 2009 it delivered two loads and on 24 September 2009 one load of coal at the defendant’s premises. The first load weighed 31, 66 tonnes, the second weighed 32, 78 tonnes and the third weighed 30, 88 tonnes. The unit cost per tonne was US$80-00; hence the claim of US$8 766-44.  In its plea filed on 10 November 2009 the defendant averred that the plaintiff delivered the tonnage in question of substandard coal, which it referred to as rubble. It was revealed in evidence that rubble is the residue which remains after coal has been burnt. This coal was not in accordance with the agreed sample of Hwange grade coal, was imperfect and did not meet the intended industrial purpose. It invited the plaintiff to collect the rubble it had delivered.

At the pre-trial conference that was held on 27 May 2010 the issue that was referred to trial was whether the product delivered by the plaintiff in fulfillment of the contract was fit for the purposes for which it was meant.

The plaintiff called the evidence of its director Pauline Muyambo and an assistant to the driver who delivered the loads in question, Peter Mahachi. The defendant relied on the testimony of its managing director Maurice Chinyani.

Pauline Muyambo stated that the plaintiff company is a coal merchant. She solicited for business from the defendant company through one of its managers called Shalimar. At that time she had samples of the coal in a paper bag. A white colleague of Shalimar indicated to her that the defendant had never used that kind of coal before but were interested in testing its efficacy. The defendant proceeded to order 30 tonnes for a trial run. She brought the 30 tonnes to the defendant. At the defendant’s premises, one of its boiler men took a bucket full of the coal and threw the contents onto a conveyor belt which carried it to the furnace. She was advised that the coal would be suitable if the intensity of the fire in the furnace did not diminish. Having passed the test, the defendant took delivery of the 30 tonnes and paid for it. It placed an order for 300 tonnes. The plaintiff supplied 216 tonnes of that order and was paid for 120 tonnes. The defendant did not pay for the remaining 95, 32 tonnes which constituted the last deliveries made on 23 and 24 September 2009 and which are the subject of the present claim. She sought payment from the defendant for these deliveries and for two weeks she was assured that payment had been made into the plaintiff’s bank account. When no payment was forthcoming she sought the assistance of the police in Chitungwiza to recover her money. She was referred to the defendant company’s chairman a Mr Somana who indicated that she would not be paid for delivering rubbish, which would be consigned to the rubbish heap. Her efforts to collect her rubbish were rebuffed.

She set out the procedure used by the defendant in taking a delivery. The truck carrying the coal parks at a reserved parking lot outside the defendant’s premises. The driver is referred by the guards manning the gates to Shalimar. Shalimar issues the driver with a paper which he takes to the boiler man. The boiler man proceeds to the truck with an empty bucket which he fills with the coal from the truck. The boiler man takes the coal and returns after 30 to 40 minutes. He then returns with a paper and instructs the guards to let the truck into the defendant’s premises. The truck proceeds to the weigh bridge where its loaded mass is taken. It is driven to the offloading bay where the coal is offloaded by shovels by some of the defendant’s employees. The vehicle returns to the weigh bridge where its empty mass is recorded. Thereafter a weigh bridge ticket containing the names of the defendant, plaintiff, the product delivered, the loaded weight, empty weight and the weight of the coal, the name and signature of the weighbridge clerk  and the name and signature of the driver are recorded. The truck leaves the premises and the plaintiff is paid its dues the following day. The procedure she outlined was confirmed by Peter Mahachi.

She averred that this was the process that was followed when the three deliveries in issue were made. She read from the three weighbridge tickets of the deliveries in question though she did not produce them in evidence. The product was identified as coal dwarf in each of the weigh bridge tickets.

Under cross examination she stated that she knew the coal required by the defendant was coal dwarf. She described it by reference to its size. She revealed that 120 tonnes were delivered on 7, 14, and 18 September 2009. She indicated the tonnages that were delivered on each of these days. She stated that all the 216 tonnes were sourced from Gypsum in Masasa Harare which used to fire its boilers using coal but had switched over to diesel generators. She was adamant that the plaintiff supplied coal dwarf. She maintained that the fact that the defendant allowed the deliveries into its premises after conducting its internal tests; off loaded it using shovels and for two weeks promised the plaintiff that payment had been made demonstrated that the correct type of coal had been delivered. The plaintiff refused to collect the coal that the defendant claimed was rubble after the plea was filed because it had no way of knowing whether that was the coal it had delivered.

The defendant called the evidence of its managing director Maurice Chinyani. He came to know the plaintiff’s director when she came with the police seeking payment for the coal delivered by her company. Until that time he was not aware of her claim. He acted on the information that he received from his general manager in charge of operations.

He took her to the grey heap of sand, stones and residue from a coal furnace that was on his company’s premises. He averred that the heap constituted the deliveries that had been made by the plaintiff.

He stated that the defendant extracts cooking oil from soya bean and cotton seed and produces stock feed from the residue cake meal. The defendant uses 25 tonnes of either dwarf or peas coal a day and about 1 000 tonnes a month to fire its boilers to the appropriate temperature required to extract edible cooking oil and cake meal.

He set out the defendant’s standard operating procedure for accepting deliveries. He stated that for coal the identity of the product is confirmed visually and is then off loaded. Dwarf coal is consistently black and shiny and is not grey. A certified boiler man receives the coal for use. He takes a bucket and pours the coal onto a conveyor belt. He assesses its suitability and stops its use if it does not meet the requisite standards. In the instance case the heap consisted of grey sand, stones and ash as opposed to shiny black coal mined in Hwange.

He revealed in cross examination that the deliveries supplied by the plaintiff were purchased by the defendant’s general manager in charge of operations. He was not aware of the procedure involving the sampling of coal using a bucket that was highlighted by the plaintiff’s witness. All he knew was that the guard at the gate did a visual inspection that the product at the gate resembled coal before receiving permission from the general manager operations to allow the truck into the premises.

The question that was referred to trial can only be determined on the basis of the credibility of the witnesses called by each party and the probabilities of the matter. The plaintiff demonstrated on a balance of probabilities that it delivered dwarf coal to the defendant’s premises. It was not disputed that the weigh bridge tickets that were raised by the defendant described the product that was delivered as dwarf coal. I found Patience Muyambo a credible witness. Her version of how she concluded the contract for the delivery of 300 tonnes of coal was not disputed. Her testimony on the procedure used by the defendant in accepting a delivery of coal through the sampling test that is carried out by a boiler man was not disputed. The vehicle is weighed and the identity of the coal is recorded. The coal is offloaded by shovels. All this is done under the supervision of the general manager operations assisted by the boiler man. The procedure was confirmed by the assistant to the driver who delivered the three truck loads of coal. That the bucket test is used by the boiler man was confirmed by the plaintiff’s managing director in his testimony. He made it clear that the boiler man is the defendant’s employee who certifies the suitability of the coal used to fire the boilers.  I am satisfied that Patience Muyambo was a truthful witness.

Maurice Chinyani was not the best witness whom the defendant could have called to testify on what transpired when the three deliveries were made. By virtue of his position, he was far removed from the actual action. The general manager in charge of operations, the boiler man, the weigh bridge clerk and the employees who offloaded the three loads of coal were best placed to testify on what actually transpired. The evidence adduced by Patience Muyambo was at variance with the standard operation manual that was adverted to by the defendant’s managing director. Indeed if visual sighting was the basis of identifying the product as dwarf coal, the persons who identified it as such should have been called by the defendant to describe what they saw. It was apparent from Maurice’s Chinyani’s evidence that the heap he showed to Patience Muyambo could not be mistaken for dwarf coal.

The probabilities favour the plaintiff’s version. The defendant consumes 25 tonnes of coal per day. Its employees must have a general idea about the nature of the coal it uses. It is unthinkable that they would have identified grey ash as black and shiny dwarf coal or failed to notice on offloading that what was purported to be coal was ash. The defendant did not explain why it did not immediately notify the plaintiff that it had delivered a substandard product when it made such a discovery but was content to mislead the plaintiff that payment had been made. It did not explain why it raised the issue of the standard of the product when the plaintiff with the help of the police, insisted on payment. The impression created by the defendant’s failure to timeously inform the plaintiff of the unsuitability of its deliveries was that the plaintiff delivered the correct product. It could very well have been consumed by the defendant in the ordinary course of its production processes. One cannot rule out that the plaintiff was then shown the by-product of that industrial process as the coal it had delivered some two weeks before.

In my view, the findings of credibility and the probabilities demonstrate that the coal delivered by the plaintiff was dwarf coal and was suitable for its intended purposes.

Mr Tsaurayi, for the plaintiff, correctly abandoned the claim for collection commission in view of the principle laid down in Scotfin Ltd vNgomahuru (Pvt)Ltd 1997 (2) ZLR 567 (H). He, however, prayed for costs on the higher scale on the grounds that the plaintiff was forced to incur such costs in this matter as a result of the intransigence of the defendant who mounted a non-existent defence. In my view, the defendant must have known that it had no valid defence to the claim but defended it for purposes of delay. It concocted the allegation of poor quality solely to avoid its payment obligations, thereby unnecessarily putting the plaintiff to expense in pursuing its claim. See Borrowdale Country Club vMurandu 1987 (2) ZLR 77 (H) at 82D.Its attitude, conduct and persistence in this matter amounted to an abuse of the court process. It is proper that I express my displeasure of its conduct by mulcting it with costs on the higher scale.

Accordingly, it is ordered that:

The defendant shall pay to the plaintiff:

1. The sum of US$8 769-44 together with interest at the prescribed rate from the date of the service of summons to the date of payment in full.

1.   Costs of suit on the scale of legal practitioner and client.

Chinganga & Partners,plaintiff’s legal practitioners

Sinyoro & Partners,defendant’s legal practitioners