EX-TEMPORE

DENDAIRY     (PRIVATE)    LIMITED    

v  

  ZIMBABWE      ELECTRICITY     TRANSMISSION     AND     DISTRIBUTION     COMPANY    (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, BHUNU JA & MATHONSI JA

BULAWAYO: JULY 22, 2019 & AUGUST 1, 2019

G.R.J. Sithole, for the appellant

R. Ndlovu, for the respondent

            GWAUNZA DCJ

[1]        This is an appeal against the whole judgment of the High Court which dismissed the         appellant’s claim against the         respondent for $162 280,17, interest and costs of suit.

[2]        The brief facts of the matter are that the parties entered into a secure power supply            agreement which expired on        31 December 2015.  In terms of that agreement the appellant           was entitled to an uninterrupted power supply save for interruptions occasioned by     faults and other factors meaning that the appellant would be spared from planned load-          shedding.  This would be done at a higher tariff of 0,128 as opposed to an ordinary power        supply tariff.

[3]        It is not in dispute that despite the respondent’s effort to renew the secure power supply    agreement including sending the appellant a blank agreement to sign, the appellant did not     sign the proposed renewal agreement.  In fact, the appellant ignored the respondent’s   correspondence seeking renewal.  By letter dated 30 December 2015 addressed to the   appellant’s General Manager by the respondent’s General Manager (Southern Region), the            appellant was notified that the agreement would continue.  It reads in part:

                        “Re: Standard Secure Power Agreement

            The above subject refers.  We advise that the Standard Secure Power Agreement   ends on 31 December 2015. However, the agreement will continue with effect             from 1 January 2016 on a month to month basis until the Regulator (ZERA)    approves a new tariff.  Please do not hesitate to contact us should you require any      further information or clarification.”

[4]        The appellant not having raised any objections the respondent continued to supply            electricity at the secured power supply rate of 0,128 throughout 2016.  During that period          of one year the respondent would issue monthly invoices reflecting the prime rate charged       for secured power supply customers. In response the appellant would settle the bills in          advance and at times it would pay much more than the amount reflected on the monthly        bill.

[5]        In December 2016 the appellant raised a query with the respondent through its legal          practitioners noting that it had been charged at a higher rate throughout the year and       demanding a refund of what it regarded as the over charged amount. By letter delivered to             the respondent on 12 January 2017 the appellant stated: -

                        “Further to your letter dated 5 January 2017, we wish to advise that we are not                              agreeable to signing the new memorandum of agreement for 2017.  With effect                             from the 1 January 2017 we would like to be on a Standard Peak and Off Peak rate                    billing system.”

            It is significant that at the beginning of 2016 the appellant had not taken the trouble to      notify the respondent as it did in the above letter which is a tacit admission that in 2016         it was a ring fenced customer. 

[6]        When the parties could not agree on the billing rate for 2016 the appellant sued for that     refund basing its claim on unjust enrichment. The court a quo found that the appellant had           failed to prove the requirements of unjust enrichment and          that by its silence the appellant had made a representation to the respondent by its conduct. It was therefore    estopped from denying the existence of a secure power supply agreement.      The appellant appealed to this Court challenging the findings of the court a quo on unjust enrichment and           estoppel.

[7]        It is settled that in order to succeed in a claim for unjust enrichment, the party relying on it           must show that:

• The defendant was enriched;
• The enrichment was at the expense of the plaintiff who was impoverished in the process;
• The enrichment was unjustified; and
• The case must not come under the scope of one of the classical enrichment actions.

[8]        Mr Sithole who appeared for the appellant submitted that the unjust enrichment was in the            sense that the appellant had been charged at a higher rate.  He however could not dispute            that the appellant had enjoyed the benefit of a ring fenced customer throughout 2016. 

In fact, Mr Sithole could not impugn the evidence led for the respondent that the appellant            had only endured power cuts on 8 occasions during the whole year none of which were           due to load shedding.

[9]        In light of the foregoing we find no fault in the finding of the court a quo that the appellant             failed to satisfy the requirements of unjust enrichment.  By the same token the finding of the court a quo that the appellant had failed to prove that it was impoverished, cannot be         faulted at all. The appeal therefore lacks merit and ought to be dismissed.

[10]      Having come to that conclusion we take the view that it is   not necessary to consider the appellant’s grounds of appeal numbers 2 and 3. 

[11]      Accordingly, it is ordered as follows: -

The appeal be and is hereby dismissed with costs.

BHUNU JA:                           I agree

MATHONSI JA:                   I agree

Mutatu & Partners c/o Mahuni & Mutatu, appellant’s legal practitioners

Messrs R. Ndlovu & Company c/o Kossam Ncube, respondent’s legal practitioners