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Justice Kamocha in January this year dismissed the claim after agreeing with MDC-T that the deal was illegal since Zimbabwe had not entered into a multi-currency economy.
The salient facts of the case are that the MDC-T represented by Mr Eddie Cross duly authorised Simon Spooner to enter into an oral agreement with the Security Mills represented by Mr Laurence Zlattner to manufacture 200 000 party T-shirts and as many head scarves, commonly known as doeks or bandanas.
The material was to be used for MDC-T’s 2008 election campaign and the cost was R4 965 723 including VAT.
Given the size of the order, Security Mills agreed to manufacture the total order in batches, to accommodate MDC-T’s express stipulation that the total order be ready for them to use in its then forthcoming election campaign.
By its agreement, MDC-T became contractually liable to pay Cabat Trade and Finance the contract price in South Africa and simultaneously incurred contractual liability to Security Mills for the manufacture of the goods.
In accordance, Security Mills duly manufactured the said goods and delivered to the MDC-T goods in batches to the value of R4 672 215,37, including VAT comprising 149 887 articles or approximately 74 percent of the contract goods, payable on tender of delivery and demand, but MDC-T, in breach of its contractual obligation, notwithstanding having accepted delivery, had allegedly refused to pay, despite demand.
The plaintiffs (Cabat Trade and Finance and Security Mills) said the MDC-T’s failure to pay for the goods thus far delivered to it constituted a material breach of an express, alternatively, implied term of agreement, entitling them to claim the full contract price ex vendito.
At the MDC-T’s request the Security Mills had withheld delivery of the balance of the manufactured goods, namely 30 000 single jersey T-shirts being finished goods ready for dispatch, to the value of R772 800 and 5 393 single jersey T-shirts, being finished goods ready for dispatch, to the value of R143 885,24 and 7 368 single jersey T-shirts, being goods comprising “work in progress” to the value of R196 578,24 pending MDC-T’s advice of readiness to receive such goods, which goods subject to such stipulation, Security Mills thereby again tendered against payment by MDC-T of the total balance due of R340 463,48.
“The plaintiffs’ performance of the agreement as aforesaid, Security Mills rendered to MDC-T the invoice for the manufacture of the goods, dated 18 March 2008 for R4 627 863,93, including VAT, being the amount due for the goods manufactured and delivered and goods manufactured but in respect of which delivery had been withheld, but tendered, for the reasons given,” they wrote.
The said invoice constituted the plaintiffs’ demand and expressly stipulated that interest accrued at eight percent per annum within 30 days of the date of the invoice and the MDC-T was allegedly liable for interest on the total sum due, mora ex re, from 17 April 2008 to the date of final payment.
In its plea, the MDC-T denied that it had authorised Messrs Cross or Spooner to enter into the alleged contract.
It averred that neither Mr Cross nor Mr Spooner had authority to enter into contracts on its behalf. It denied that it had purchased anything from the Cabat Trade and Finance and denied liability to pay VAT in South Africa.
The MDC-T further averred that any valid order would have been written not oral and would have been authorised by its director general.
It denied being party to the agreement between the plaintiffs and Messrs Cross and Spooner and further denied that it had expressly agreed to effect payment to the Cabat Trade and Finance the contractual price in South Africa, as such agreement would have been illegal.
MDC-T pleaded that it had not received the goods and averred that a goods received voucher would have been issued to Security Mills had the goods been received.
The MDC-T finally averred that plaintiffs should have made the demand to Mr Cross and Mr Spooner since they were the parties to the contract and prayed for the dismissal of the plaintiffs’ claims with costs.
The Supreme Court judge will also hear the appeal by Mr Maxwell Shumba, the founder of Elite High School, who was evicted from the farm owned by the Apostolic Faith Mission.
The other case set down for hearing is the case pitting the Bulawayo Beitbridge Railways and the Zimbabwe Amalgamated Workers’ Union.
The only criminal case set down is that of Lython Mathe versus the State.
According to the court roll the Supreme Court will sit up to Friday.
Online Reporter