Fairclot Investments (Pvt) Ltd t/a Trucking & Construction Civil Contractors v Association of University Teachers and Delatfin Investments (Pvt) Ltd t/a Kelvin Civil Engineering

### Preamble
1
HH 714-18
HC 6235/15
---------


FAIRCLOT INVESTMENTS (PVT) LTD t/a

TRUCKING & CONSTRUCTION CIVIL CONTRACTORS

versus

ASSOCIATION OF UNIVERSITY TEACHERS

and

DELATFIN INVESTMENTS (PVT) LTD t/a

KELVIN CIVIL ENGINEERING

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 23 -24 October 2018 & 7 November 2018

Civil Trial

G Dzitiro, for the plaintiff

J. Mambara, for the 1st defendant

2nd defendant in default

KWENDA J: The plaintiff is a company registered in terms of the law of Zimbabwe. Its core business is trucking and construction work and trades as an independent contractor.

The first defendant is an association of University Teachers. It is a universitas duly constituted, capable of suing and being sued. The second defendant is a company incorporated in terms of the law of Zimbabwe.

In the year 2010 the government allocated a certain piece of land in Hatcliffe to the first defendant to subdivide and develop into residential stands for the benefit of its members.

On 5 December 2010, the first defendant floated a tender for the construction of roads, storm water drainage and water reticulation. The second defendant’s bid was successful culminating in a contract between the first and second defendants whose effective date was 1 April 2011. First defendant produced the tender document and the contract together as exhibit 2. Exhibit 2 has comprehensive information on the tender and contract. The parties agreed that the contract would be fully performed by 31 December 2011 subject to extensions.

Somehow work at the servicing has not yet been completed to date. The reasons for the delay were not canvassed and are not relevant to the dispute at hand.

It appears the period of the contract was extended, because in May 2014, the second defendant subcontracted the plaintiff to service 8, 7 kilometres of the roads. The subcontractor agreement signed by plaintiff and second defendant specified the quantities of work subcontracted, materials, surface area covered and the costing. First defendant did not immediately become aware of the subcontractor agreement. No issue arises from that.

The plaintiff moved on site. When work on the roads commenced, first defendant assumed that it was second defendant at work. Indeed it was the second defendant at work through the agency of its subcontractor, the plaintiff. The subcontractor agreement provided that second defendant would pay the plaintiff the quoted price in advance before mobilisation. All parties accept that mobilisation refers to putting together all necessary resources for the work and moving machinery and equipment on site. Work in terms of the sub-contractor agreement was supposed to be completed within three weeks. The subcontracted work consisted of prime application, tack coat and seal coat. These are just technical terms which refer to the conversion of a gravel road to tarred road. In simple terms the second defendant subcontracted the plaintiff to surface the road network for phase 1 of the first defendant’s housing project in Hatcliffe.

The project that was supposed to be performed in three weeks is still the subject of a serious dispute four years later.

As stated above, the plaintiff mobilised its resources and was on site soon after signing an agreement with second defendant. The machinery and plant mobilised by the plaintiff included heavy lorries, large trucks, low bed trucks, rollers, machinery and several equipment, some of which had to be carried on other vehicles because they cannot be driven on the road without causing damage to the surface. Once on site, the plaintiff immediately commenced prime application. However the plaintiff was to soon to realise that the advance payment promised by second defendant was not forthcoming whereupon it stopped work. While the equipment remained on site, plaintiff engaged the second defendant for immediate payment with the hope that the work stoppage would coerce second defendant into paying. The second defendant did not pay whereupon the plaintiff removed its equipment from the site. Later the second defendant successful negotiated the resumption of work on the project after promising to pay.

The plaintiff went back on site whereupon the second defendant paid $40 000 out of the invoiced sum of $83 190-54. The invoices were the documents prepared by the plaintiff setting out the quantity of work to be done in phases and the amount of advance payment required. Invoice KCE 03 issued in June 2014 set out the work as “prime and tack” at a cost of $83 190-34 (see p 5 of the plaintiff’s bundle of documents produced as exhibit one).

I must hasten to say that three exhibits were produced at this trial by consent. All the exhibits were the parties’ paginated bundle of documents. Exhibit 1 is the plaintiff’s bundle. Exhibits 2 and 3 were the first defendant’s original and supplementary bundles respectively.

Second defendant did not defend the claim and the plaintiff has filed a chamber application for default judgment. The plaintiff prayed that judgment against the second defendant be held in abeyance until the end of the trial, to be pronounced together with the outcome of this matter because the plaintiff prayed for judgment against first and second defendants jointly and severally one paying, the other to be absolved.  The prayer having been made in the summons, I see nothing wrong with the request. Certainly the rules do not prohibit the approach. It appears to me to be more expedient to approach the matter that way rather than have separate orders in the same matter.	Of course, the request by the plaintiff remains a prayer which is dependent on the resolution of the issues between it and the first defendant.

I now revert to the trial.

The second defendant failed to pay again whereupon the plaintiff stopped work and parked all equipment and machinery for the second time. Plaintiff’s key witness, one Grant Russell, testified that he decided that the plaintiff decided not to incur further expenses. It engaged the second defendant again for payment while its machinery remained parked on site without success. Eventually it removed all the plant and machinery again, at a huge cost.

Russell represented the plaintiff in the negotiation of the sub-contractor agreement, mobilisation of resources and execution. He was therefore, personally in charge of the thinking on behalf of the plaintiff. He testified that the plaintiff’s “mind-set” was that the contract was not worth pursuing. He made the decisions to suspend work and eventually to pull out.

Sometime after the plaintiff had moved off the site, the first defendant approached the witness and requested the plaintiff to complete the project. Prior to that there had been no communication between plaintiff and first defendant. The witness refused to go back on site indicating that the plaintiff had given up on the contract and it no longer wanted to deal with the second defendant. Discussions ensued whereupon the plaintiff and first defendant talked about completing the servicing of the 8,7 kilometres of road with the first defendant paying directly to the plaintiff. The exact details of the agreement are contested but suffice it to say, the plaintiff agreed to and moved back on site after it had been approached by the first defendant. The parties agree that the plaintiff moved off the site twice for non-payment and that the first defendant approached the plaintiff after it had withdrawn from the project on two occasions. It is also common cause that the first defendant approached plaintiff because it wanted the road servicing to be completed before the rains. The first defendant had, upon enquiry, become aware that it was plaintiff working on the roads surfacing as a subcontractor of second defendant. It is accepted that plaintiff was never going to complete the road project without receiving payment.

Agreement was therefore reached after negotiations. The plaintiff and second defendant do not agree on the finer details of the people who participated and content of the agreement reached. Plaintiff avers that the discussions involved only the plaintiff and first defendant. It no longer wanted to deal with second defendant. Plaintiff also says first defendant undertook to pay for the completion of the project. On the other hand, first defendant avers that the negotiations were tripartite, involving plaintiff, first and second defendants. First defendant avers that it did not undertake to pay the entire outstanding contract price. Its position was that it undertook to pay only $60000 directly to the plaintiff as an incentive and the guaranteed that the rest would be paid through second defendant.

Pursuant to the agreement the first defendant wrote a letter to the plaintiff dated 27 October 2014. It is necessary to reproduce the letter here.

“Mr Grant Russell

Fairclot Investments t/a Trucking and Construction

Civil Contractor

P O Box H103 Hatfield,

Harare

Dear Sir

RE: PERMISSION TO RESUME WORK AT THE AUT HATCLIFFE SITE

The AUT has it on record that your company was subcontracted by Delatfin Investments (Pvt) Ltd to tar the roads at AUT Hatcliffe Housing Scheme. This job was not completed and has been outstanding since June/July 2011 ostensibly due to non-payment to you

You are hereby granted full access to the site to complete the tarring as a matter of urgency in view of the fact that the rain season is about to commence.

Yours faithfully

For and on behalf of the Association of University Teachers

Mr J Nharira 			President (AUT)

Mr B Chipindu 			Committee Member

Mr T Matshakayile Ndlovu 	Treasurer

Dr M Ruzivo 			Secretary General

c.c. Delatin Investments (Pvt) Ltd.”

Upon receipt of the letter, plaintiff moved back on site and completed the work it had

initially been subcontracted to do by second defendant. The agreement which resulted in the plaintiff working back on site was not recorded. Russell says that it was contemplated that the terms and conditions in the subcontractor agreement would define the work to be done and the price. Indeed, on its part, the plaintiff serviced 8,7 kilometres of the roads.

The law is that a contract can be wholly verbal and still be binding if it is proved to exist. It is trite that he who avers the existence of a contract must prove. In deciding what was agreed upon I note that the first defendant approached the plaintiff and offered it a contract to complete the road project. An offer is usually communicated in words spoken or written. See The Law of Contract in South Africa 3rd ed RH Christie. The plaintiff accepted the offer. It is no disputed that first defendant approached the plaintiff and invited it to complete the remaining work. It is also not in dispute that the plaintiff accepted the offer because it moved back on site and completed all invoiced work. (See invoices quoted as KCE 03 and KCE 04 in the statement forming plaintiff’s bundle produced as exhibit 1).

In ascertaining the terms of the parties’ contract I will quote with approval Christie at p 171.

“The terms of the contract are the promises agreed upon by the parties which together make up the contract. When there is doubt or dispute about what statements, oral or written, or conduct should be included in a contract as (its) terms, the court may have to carry out a two stage enquiry to decide first, what was said, written or done and, second, whether it must be included among the terms of the contract.”

My understanding is that the terms of a contract are to be determined from the totality of the evidence, oral, written as well as the conduct of the parties to the contract.	The plaintiff’s ‘mind-set’ going into the negotiations was that its subcontractor agreement with the second defendant was no longer worth pursuing. It was also no longer willing to deal with the second defendant. It had removed its equipment from site. It had not taken steps to enforce its agreement with the second defendant. While it folded its hands it was approached by the first defendant. First defendant negotiated with it to return to the site. It stood firm that it would not complete the project without payment. First defendant promised to pay $60 000 directly to it and deposited that amount into a bank account provided by the plaintiff.

The plaintiff says that the agreement was that second defendant would pay all outstanding amounts to it directly. The first defendant’s witnesses said that second defendant only agreed to pay $60 000.00 as an incentive and simply assured the plaintiff that the balance would be paid. They maintained however that giving assurance was not the same thing as saying it undertook to pay directly to the plaintiff and the plaintiff must approach the second defendant. The first defendant’s witnesses were therefore steadfast that it had no liability.

I reject that assertion. The terms of a contract can be inferred from the circumstances of the negotiations. The plaintiff had resolved not to move back to the site without payment. Plaintiff had also resolved that it was never going back to the site at the instance of the defaulting second defendant. It is therefore not conceivable that it would have agreed to complete the job on the basis of an ‘assurance’ that second defendant would pay. I find that submission absurd and illogical. The only reasonable inference to be drawn is that first defendant guaranteed payment as surety and co-principal debtor. The only reasonable inference is that, a contract came into existence in terms of which first defendant undertook to pay the plaintiff for the work that was outstanding. That is the only way the impasse or the stalemate could be resolved. Indeed first defendant paid $60 000 directly to the plaintiff.

The inference that I draw is also consistent with all proven facts in particular the letter referred to above. The letter acknowledges that the plaintiff had stopped work due to non-payment. It further acknowledges that that first defendant wanted the plaintiff on site immediately to complete the project. It also gave the plaintiff the target to complete the surfacing before the rains. If those were the respective expectations of the contracting parties it is only logical to conclude that the agreement reached catered for the demands.

The first defendant’s witnesses said that, the letter discussed above was by first defendant written simply to give the plaintiff access to the site and assurance. The explanation is not convincing. The plaintiff did not require first defendant’s permission to go on site. Actually it had been there twice without reference to the first defendant. Plaintiff had already been to the site twice without getting that permission from the first defendant. It had moved on and off the site at will. The second defendant’s witnesses were evasive when asked on the exact nature of the assurance which it gave to the plaintiff. Surely the only conceivable assurance was a guarantee by second defendant that the plaintiff would receive payment. It is ridiculous to argue that the assurance given was simply that second defendant who had defaulted twice would pay. It is difficult to fathom how that can be an assurance.  The court will therefore examine the conduct of the parties and the circumstances under which the parties met as well as the correspondence which is common cause to determine whether the was 	“intention (by the) contractants to create particular obligations and the qualification of the

those obligations- -

For the validity of a contract it is, in fact, not even a requirement that it must be classifiable as any particular class of contract .parties may enter into a contract which is wholly sui generis as long as they make it clear what they intend to bind themselves to.”

See Contract Law Case book 3rd ed. Luanda Hawthorne and Chris James Pretorious at pp 257-8 and the cases cited thereat.

Having considered prior conduct of the parties, the circumstances leading to and prevailing during negotiations between first defendant and plaintiff, I hold that the plaintiff’s version is to be preferred for various reasons. Grant Russell who testified for the plaintiff was personally involved in the negotiations. Actually he was the person who did all the thinking on behalf of the plaintiff, making and implementing all decisions on its behalf. He was therefore privy to the discussions and agreement reached. His attitude and stance therefore translated into the attitude and stance of the plaintiff.

On the other hand, the first defendant decided to call witnesses who did not have first-hand knowledge of the negotiations and agreement reached. The first defendant called only two witnesses namely Professor Mediel Hove and Dr Gwatirera Javangwe. They were not in the the executive which entered into negotiations with the plaintiff. Actually, they only became members of the executive committee of the first respondent in the year 2015.They were not the authors or signatures to the first defendant’s letter dated 27 April 2014 inviting the plaintiff to return to site. In other words they neither came up with the offer nor communicated same to the plaintiff.

The explanation by the first defendant’s witnesses for not calling those members of the executive who were present during the negotiations with Grant Russell borders on outright falsehoods.	The explanation given to start with, was that the witnesses passed away before pre-trial conference. As it turned out, that explanation is not correct. The first defendant filed two summaries of evidence. The first summary of evidence was issued out of this court on 21 September 2015. It listed the first defendant’s witnesses at Messrs Matshakayile-Ndhlovu, Munetsi Ruzivo and John Nharira. Those were the person who had personally knowledge of what transpired. On 21 September 2015 the first defendant amended its summary of evidence replacing the witnesses with only two people namely Professor Medial Hove and Dr Gwatirera Javangwe who were not present during the discussions/negotiations with plaintiff. The first defendant did not give any reasons for the drastic change in its witnesses. Contrary to current practice, the amended summary of evidence did not state what each of the witnesses was going to say. A summary of evidence is exactly what it is named; the testimony of each and every witness must be stated in brief. The untruthfulness of the explanation given by the first defendant for changing witness was exposed when it turned out that Mr Ruzivo is alive. Both Professor Medial Hove and Dr Gwatirera Javangwe confirmed that Mr Ruzivo was unwilling to testify for the first defendant. In addition to that Mr Nharira passed away sometime between October 2017 and February 2018. Clearly he died after the decision to drop him as a witness had been reached and implemented by the first respondent. Mr Ndhlovu also passed away also died in the year 2017 presumably after the amended summary of evidence been filed on 15 March 2017.

Professor Hove testified on the second day of the trial. He must have become aware of what transpired in court on the issue. When confronted about the issue of changing witnesses he added a new dimension to the first defendant’s case. He said it is the first defendants’ policy that whenever new executive members are appointed, they invariably represent and testify on behalf of the first defendant in court. This was an outright lie. Mr Jabangwe and he were appointed to the executive on 25 June 2015. The appointments were before first defendant prepared its first summary of evidence on 18 September 2015. If his explanation is to be accepted then there is no reason why the previous members of the executive were listed as witnesses because according to him only current members of the Executive committee are eligible to testify. It is disheartening that people practising a respectable profession at the highest level can connive to lie in court.

The witnesses further claimed that they had knowledge of what was discussed because the executive briefed them. However, there is no point in relying on hearsay evidence when witnesses with first-hand knowledge are available. It emerged that all is not well in the first defendant. There is serious disagreement. Professor Hove said their election to the executive was disputed. The old executive refused to handover books of accounts. Accordingly, in the absence of proper documentation the authority of Professor Hove and Dr Javangwe to represent the first defendant becomes doubtful. That however is not the main problem. The real problem arises from two realities arising from the absence of the persons who represented the first defendant during discussions with the plaintiff. The first reality is that the evidence of Russell remained uncontroverted by credible evidence. The second reality is the in escapable inference that those who know what transpired declined to be associated with the position taken by first defendant. In all probabilities they declined to testify because they know that the position taken by the first defendant in defending the claim is wrong.

The lack of bona fides by the current executive of the first defendant was also revealed by its decision to file further discovery on the day of trial. The supplementary discovery affidavit introduced the first defendant’s statement for its bank account held at the Avondale Branch of the Standard Bank. The statement was being produced to demonstrate that the first defendant had paid a total of $122 000 to the second defendant between 27 May 2015 and 28 May 2016. In so doing the first defendant claimed to be excused from paying the amount claimed by the plaintiff. First defendants counsel cited the case Ncube v Mpofu 2006 (2) ZLR 41 as authority for that argument. I will revert to the merits but first I will deal with procedural issues regarding the last minute discovery by the first defendant.

The plaintiff objected to the further discovery made on the date of the trial. The plaintiff’s counsel submitted that the discovery at the commencement of the trial was prejudicial to her client. She had no prior knowledge of the bank statement and consequently she had no instructions on it yet in leading evidence for the plaintiff she would require her client’s witnesses to comment on the bank statement. In any event the plaintiff had not had the opportunity to verify its contents of the bank statement. The first defendant’s counsel argued that it is common practice to make supplementary discovery any time before the trial commencement of the trial.

I ruled that while there appeared to be no specific provision in the Rules of this Court on the specific issue the time and rationale for making discovery was discernible from the rules if they are read together. Order 24 of the rules of this court deals with issues of discovery, inspection and production of documents. A party may call upon its adversary to make discovery within twenty four days (See r 160). Once a party has been served with a notice to make discovery in terms of r 160 it should make discovery within twenty four days or any period specified by a judge (see r 161). A party can compel further discovery documents not disclosed may not be used at trial without leave of any court (rule, 163). A party is entitled to inspect discovered documents (rule 164) failure to permit inspection may result in an application for an order compelling discovery. Failure to comply with the court order compelling discovery or production of a document may result in dismissal of a claim or striking out of a defence (rule 168). The rationale seems to be that a party is entitled to notice or knowledge within reasonable time of documentary evidence to be used by the other party. Accordingly where discovery is made just before trial, the court may grant leave after having regard to the prejudice to be suffered by the innocent party.

Actually a reading of order 24 reveals that the discovery is intended to achieve transparency and fairness in by affording the adversary adequate time to prepare.. Ambushing the other party is inconsistent with the spirit of the practice and procedure outlined above. The procedure on curtailment of procedure requires parties to disclose documentary exhibits at pre-trial conference stage (see rule 182). I therefore found last minute discovery by first defendant undesirable and potentially prejudicial to the plaintiff. I requested plaintiff’s counsel whether the prejudice not be cured be by standing the matter down for her to take instructions or postponing the trial with an order for costs. After a brief adjournment the plaintiff agreed to the production of the statement by consent as exhibit 3. However as it turned out plaintiff’s decision was hurriedly made because in cross examination plaintiff’s counsel queried why the bank statement had no bank stamp. However in reality the plaintiff was not prejudiced because ironically the bank statement created another controversy for the first defendant.

The controversy unfolded as follows:

The plaintiff addressed a letter of demand to the first defendant on the 15 April 2015. The legal practitioner who is currently representing the first defendant replied on the 24 April 2015 denying liability. He said first defendant had no agreement with the plaintiff. Its agreement was with second defendant and accordingly there was no reason to pay plaintiff. He reminded the plaintiff than it (Plaintiff) had been a subcontractor of the second defendant.  Thereafter the second defendant says it paid a total sum of $122 000 to the second defendant for the work done by the plaintiff. First defendant’s witnesses were asked to explain why , faced with plaintiff’s demand, why they preferred to pay the second defendant. Clearly the demand presented to the first defendant in its capacity as employee of both plaintiff and second defendant had raised a red flag. If indeed it was bone fide, it was within its capacity to withhold payment until the dispute raised by the plaintiff had been resolved by the courts. Professor Hove, testifying for the first defendant was asked why the first defendant was now no longer willing to deal with the plaintiff. He was aware that plaintiff had boycotted dealing with second defendant whereupon second defendant intervened and paid $60 000 directly to the plaintiff. He explained that the first defendant had paid the $60 000 directly in order to ‘unlock progress’. Second defendant wanted the project completed. That explanation is absurd. First respondent unlocked progress by paying $60 000 directly to the plaintiff. It also guaranteed future payments. Accordingly, when it received the complaint of non-payment before releasing funds, that presented an opportunity to enforce the suretyship/assurance given by it. There is no reason why second defendant would release funds to a defaulter.

The assertion by the first defendant then it has paid $122 000 to second defendant for the road works undertaken by plaintiff is simply not true. When it suited it, it took bold steps to unlock progress but once progress had been achieved it suddenly will not have anything to do with the plaintiff. How selfish! The lack of good faith is monumental. The second defendant is still on site. The total contract price between first and second defendants exceeded 3 million dollars. So the first defendant could be paying for other things. It failed to produce confirmation of what it was paying for.

Accordingly I accept plaintiff’s version concerning the content of the agreement reached. In the face of default of performance by the second defendant, the plaintiff accepted the offer extended to it to complete the work it had boycotted on the assurance given by the first defendant it would pay for the work. The plaintiff believed that first defendant would pay in the same way it had paid $60 000. I therefore find that the first defendant is liable.

I will now discuss the submission by first defendant that it is excused from liability because it paid $122 000.00 to the second defendant. Plaintiff’s counsel referred me to Ncube v Mpofu 2006 (2) ZLR 41. First defendant did not specifically plead the defence. On that ground alone the defence would not be available to it. However, the cited case is easily distinguishable. That case was concerned with the sale of an immovable property. The parties had agreed that the purchaser would pay to the estate agent. The estate agent was therefore authorised to receive the purchase price. As soon as payment is received by the estate agent, the purchaser would have discharged his/her obligation. The opposite is true in this case. Plaintiff had become fed up with the second defendant. There is no way it would have agreed that payments be received through a defaulting party.

ISSUES

At the pre-trial conference the parties signed a joint pre-trial conference minute identifying the issues as follows:

Whether first defendant was liable

If so, the amount payable to the plaintiff

The joint PTC minute was not signed by a judge.

At the beginning of the trial I expressed the view that the only issue that arose from the pleadings was first defendant’s liability.	The first defendant’s counsel argued at the end of the trial, that the trial court is bound by the issues identified at the pre-trial conference. I reject the argument. The first defendant’s plea raises only one issue, that of liability. It did not plead in the alternative that in the event that it is found to be liable it would dispute the amount claimed.

The plaintiff amended its declaration before pre-trial conference. It stated that the parties agreed that the first defendant would pay on the basis of the tariff stated in the quotation previously presented to the second defendant (the sub-contractor agreement). The plaintiff’s witness explained that it was agreed that the rates of the subcontract would apply since the main contractor normally applies a mark-up.First defendant did not plead to the amendment. First defendant considered its original plea sufficient The averment by plaintiff in the amendment therefore remains uncontroverted. Further, the first defendant failed to call the persons who had attended the negotiations to rebut plaintiff’s assertion.

The purpose of pleadings is to sufficiently and clearly inform the defendant of the  claim they are going to meet and the plaintiff of the true nature of the defence. Pleadings also help the court to identity the issues. Where the defendant puts in issue only liability claiming that the debt is payable not by it but by another person that will be the defence available to it. A defendant must anticipate that the Court may still find it liable and plead in the alternative. See Herberstorn & Van Winsen. The civil practice of the High Court of South Africa vol 1 5th ED at pp 592 and 594.

In any event the amount due was proved by the production of a statement quoting invoices. A statement is normally accepted as proof of what is due unless specifically challenged. The plaintiff deserves to be paid after rendering performance as agreed.	Costs

The plaintiff prayed for costs on a legal practitioner client scale. I find merit in the prayer. The first defendant’s intransigence is sufficient grounds. The first defendant should have been grateful for the progressive attitude showed by the plaintiff in agreeing to go back on site. In the beginning, first defendant had no legal relationship with the plaintiff. The legal relationship came about at its instance when it approached the plaintiff. The selfishness exhibited by turning around as soon as progress had been achieved is reprehensible. The first defendant had the opportunity to have the dispute resolved before releasing money to the second defendant. It did not. The conduct by it, in excluding as witnesses people with personal knowledge was deplorable. It was motivated by the desire to supress unfavourable evidence. The matter should have resolved at pre-trial conference as soon as it became clear that those of its members who had personal knowledge of what transpired were unwilling to associate themselves with thankless behaviour.

I ORDER AS FOLLOWS:

The 2nd defendant being in default, judgment be and is hereby entered against it as prayed

1st and 2nd defendants are ordered to pay to plaintiff $115 260.68, jointly and severally, one paying the other to be absolved plus interest at the prescribed rate from the date of summons being 3 July 2015

The defendants shall pay costs on a legal practitioner client scale jointly and severally, one paying the other to be absolved.

Mutumbwa, Mugabe & Partners, plaintiff’s legal practitioners

J Mambara and Partners, 1st defendant’s legal practitioners