Godfrey Sibanda v Tendayi Mushayi

### Preamble
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HH 488 - 25
Case No HCH 6146/20
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GODFREY SIBANDA

versus

TENDAYI MUSHAYI

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 4 April 2025 & 16 June 2025 & 2 September 2025

Civil Trial

A Muchandiona, for the plaintiff

The defendant in person

MUSITHU J:    The plaintiff issued out summons against the defendant for the payment of US$4,600.00 arising from a loan advanced to the defendant sometime in February 2020, and the balance of solar inverters sold and delivered to the defendant by the plaintiff. Despite demand for the payment, the defendant failed to settle the said obligations to the plaintiff. The plaintiff’s claim was couched as follows;

“The Plaintiff prays for: -

(a) An order directing defendant to pay plaintiff US$4 600 within seven (7) days of this judgment is granted against him.

(b) In the alternative, an order directing defendant to surrender the Nissan Hardbody Registration No. 2448 to plaintiff in full and final settlement of the debt of US$ 4 600.00.

(c) In the event that the defendant fails to voluntarily surrender the said motor vehicle to the plaintiff following service of this order, the deputy sheriff is hereby authorized to take the same and surrender to the plaintiff.

(d) The defendant shall pay collection commission.”

Background of the plaintiff’s case

The plaintiff’s claim is premised on a loan agreement (hereinafter referred to as the agreement) he signed with the defendant on 20 February 2020. The defendant approached the plaintiff alleging that he won a contract with Agribank (the bank) to fix solar photovoltaic (PV) systems at various branches of the bank countrywide. The plaintiff agreed to advance the defendant the sum of US$6,000.00. The agreement was reduced to writing by the parties on 20 February 2020. The terms of the agreement were that the defendant was to pay back the full sum of US$6,000.00 on or before 20 March 2020. As security for the due payment of the amount, the defendant pledged a white Nissan Hardbody vehicle, registration number AAL 2448 (the vehicle).

The parties further agreed that if the defendant failed to honour the terms of the loan agreement, the said vehicle would be surrendered to the plaintiff. The defendant proceeded to surrender the vehicle’s registration book to the plaintiff. The plaintiff averred that the defendant later failed, neglected and or refused to repay the US$6,000.00 in full even though payment had fallen due. The defendant failed to repay even though the plaintiff had extended the repayment date from 20 March 2020 to 20 April 2020 and finally to 20 May 2020.

As regards the second claim, the plaintiff averred that sometime in March 2020, he supplied the defendant with five 5 kilowatts (kW) solar inverters worth US$3,900.00. The cumulative total amount for the US$6,000.00 loan and the US$3,900.00 for the solar inverters was US$ 9,900.00. Of the total US$9,900.00, the defendant managed to pay the plaintiff US$4,800.00 and returned one of the inverters valued at US$500,00. Despite demand, the defendant failed, refused and/or neglected to pay the remaining US$4,600.00.

In his plea, the defendant denied owing the plaintiff anything. He claimed that he had repaid the loan in full and that the present claim by the plaintiff was an attempt to recover unlawful interest from a loan which he had fully settled. The defendant averred that he had also paid for the solar inverters in full.

Issue for trial

The issue for trial as agreed by the parties and recorded in their Joint Pre-Trial Conference minute dated 11 September 2024 was as follows.

Whether the defendant owed the plaintiff an amount of US$4,600.00.

Case Management Meeting

On 3 April 2025, I invited the parties for a case management meeting to assess the parties’ readiness for the trial and to establish from the parties if there had been any developments in the case post the Pre-Trial Conference meeting. It emerged from the case management meeting that the defendant’s erstwhile legal practitioners Messrs Mashizha Mutukwa and Sambo had renounced agency. During the meeting, the defendant expressed his desire to look for alternative legal representation to enable him to attend the trial with a legal representative. On the day of the trial, the defendant advised the court that he had failed to secure another legal practitioner and the trial could proceed.

The Plaintiff’s Case

The plaintiff gave evidence as follows. The defendant approached him with a contract that he claimed was awarded to him by the bank for solar installations at its various branches countrywide. The defendant was looking for funds as he did not have capital at the time. The plaintiff agreed to advance the defendant US$6,000.00, and the defendant in turn tendered the vehicle as security. The plaintiff was shown the vehicle in question by the defendant and took delivery of its registration book. The registration book did not bear the defendant’s name but there was an agreement of sale between the defendant and the seller of the vehicle, one Fungai Mandiforo, which confirmed that the vehicle now belonged to the defendant.

Concerning the different vehicle registration numbers appearing on the loan agreement and the one that was appearing on the agreement of sale placed before the court, the witness stated that the registration numbers were indeed different but it was the same car. The witness claimed that he then entered into a loan agreement with the defendant on 20 February 2020 for the US$ 6,000.00, which was to be paid back by 20 March 2020. The defendant failed to repay the money on the agreed date and promised that he would pay back the money on the same date the following month. The plaintiff and the defendant agreed for payment to be made on the new date which was 20 April 2020, and both appended their signatures against the said new date.

The defendant again failed to repay the amount on 20 April 2020. He came with another agreement claiming that he had been awarded a contract by Maersk. The witness told the court that he had some inverters valued at US$3,900.00, which he left at the defendant’s offices. Upon enquiry on the whereabouts of the inverters, the defendant advised him that he had used the inverters for the Maesrk contract, and that he would pay for the invertors once he received payment from Maesrk. The total value that the defendant owed was now US$9,900.00, being the loan amount of US$6,000,00, and US$3,900.00 for the invertors. The invertors were governed by a gentlemen’s agreement that the parties reached after the defendant failed to repay the loan amount in April 2020, and they agreed that payment would be made in May 2020.

The witness told the court that the defendant only paid US$ 4,800.00 out of the US$9,900.00 that he was owed. The defendant also returned an invertor worth US$500,00. That meant that the defendant had repaid US$ 5,300.00, leaving an outstanding balance of US$ 4,600.00. The plaintiff averred that had the defendant repaid him in full as he alleged, then he would have demanded the vehicle registration book back. The witness stated that he was a professional person guided by engineering ethics and would not victimise the defendant.

The plaintiff stated that sometime in 2020 the defendant wanted to pay him in full and asked for his banking details, but no money was ever deposited into his bank account. The plaintiff told the court that before he instituted the current proceedings he attempted to resolve the issue with the defendant amicably, but the defendant was nowhere to be found. Further, when the Maesrk deal collapsed, the plaintiff visited the defendant at his place of residence, but the defendant and his wife chased him away.

Under cross-examination the witness stated that he delivered 5 kW solar inverters at the defendant’s offices, save for one that they later discovered was not a 5 kW inverter but a 3 kW inverter. When challenged why there was no documentation or agreement for the solar inverters, the witness conceded that there was no documentation, invoice or delivery note for the solar inverters to confirm that the solar inverters were delivered at the defendant’s office. He stated that the arrangement was based on a gentlemen’s agreement, hence the absence of any documentation. The other reason was that the solar inverters were not intended for the defendant who just converted them to his own use without the plaintiff’s consent.

As regards the US$6,000.00 loan, the witness stated under cross-examination that he handed the defendant the money at Causeway Post Office in Harare. When asked to confirm that the agreement he had placed before the court was not the original one, the plaintiff admitted that they had the first loan agreement that was handwritten and that the copy he had indicated contents of the original agreement. The plaintiff also stated under cross-examination that he did not charge the defendant any interest on the loan amount, as the parties had agreed that the defendant would help market plaintiff’s products.

When challenged to produce evidence of where he got the money that he claimed to have given to the defendant as loan, the plaintiff stated that part of the money came from his bank account and the other from his savings. The plaintiff admitted that he did not have any proof to show that he had withdrawn the money from the bank, and he could no longer approach the bank for that information as the bank he was using at that time (Barclays Bank) had since ceased operations in Zimbabwe.

Concerning the different vehicle registration numbers appearing in the loan agreement and the registration book, the defendant stated that the differences of the registration numbers saved to show how untruthful and unreliable the defendant was. To him what mattered was the registration book that the defendant had surrendered to confirm his indebtedness.

The witness went further to state under cross examination that he gave the defendant 5 inverters and four of these were 5 kW valued at US$4,800.00. The defendant returned one 3 kW inverter valued at US$500.00. The defendant allegedly took the inverters without the plaintiff’s permission. The defendant undertook to pay for the inverters, which dissuaded the plaintiff from filing a criminal complaint against the defendant.

Asked to explain the various dates and signatures that were endorsed on the loan agreement, the plaintiff stated that these were occasioned by the defendant’s request to change the repayment dates. The plaintiff also stated that the original printed agreement was printed and brought by the defendant himself when the parties met at Causeway Post office on 20 February 2020 at Causeway Post office.

The Defendant’s Case

The defendant claimed that he had a document which showed where the plaintiff would sign when he paid him the outstanding amounts. The defendant placed before the court a document dated 22 June 2020 which he claimed showed the money he paid to the plaintiff as settlement for the loan and interest of US$800.00. On top of that amount the defendant averred that there was an excess amount of US$200.00, which he also paid because the person he had instructed to pay did not know the exact amount.

The defendant also told the court that the dispute arose after the plaintiff accused him of making late payments and demanded some top amounts to cater for the delayed payments. The defendant also stated that when the plaintiff claimed interest that was the time he refused with the registration book. During the same period, the defendant was served with summons from the Magistrates Court for the inverters, but the plaintiff withdrew the matter only to resuscitate it later. The defendant denied that the plaintiff gave him the inverters, averring that the plaintiff left them at Hippo Energy Technologies, a company that the defendant worked for. The plaintiff would come and advertise the inverters for sale at the company, and the defendant had nothing to do with them. The company is the one that would be better placed to explain what happened to the inverters.

Under cross examination, the defendant denied having borrowed US$6,000.00 from the plaintiff. He admitted that the signature on the photocopied loan agreement was his and not the one on the other purported agreement. The defendant also told the court that he borrowed US$4,200.00 from the plaintiff and was supposed to pay him back with an interest amount of US$ 800 to bring the total to US$5,000.00. When asked why he did not state that position in his plea, the defendant failed to give a clear response.

The plaintiff’s closing submissions

Mr Muchandiona for the plaintiff submitted that the plaintiff’s claim as pleaded fitted in squarely with the evidence placed before the court. Firstly, he advanced US$6,000.00 to the defendant and he also supplied solar inverters worth US$3,900.00, bringing the total amount to US$ 9,900.00. The defendant returned a 3-kW inverter worth US$ 500.00. Counsel also averred that the defendant later paid a sum of US$4, 800.00 through instalments. If one added the sum of US$500,00, for the 3-Kw inverter to that amount, then it meant that an outstanding balance of US$4, 600.00 remained outstanding from the total amount of US$9,900.00.

Mr Muchandiona urged the court to accept the plaintiff’s evidence because it constituted a record of what transpired. The defendant was not only evasive in his response to the material averments made by the plaintiff, but he completely avoided mentioning any figures. The plaintiff submitted that it was also clear that the transaction concerning the inverters involved the defendant in his personal capacity, and not Hippo Energy Technology as claimed by the defendant. The defendant had been represented from inception of the case right up to the Pre-Trial Conference stage. The expectation was that his legal practitioners would have properly set out the defendant’s case and made a counterclaim for the registration book and the excess amount of US$ 200.00 that the defendant now claimed to have been overpaid.

On that basis, the defendant’s case was highly improbable, while the plaintiff had proved his case on a balance of probabilities.

The defendant’s closing submissions

The defendant averred that the plaintiff had stated that he supplied 5 kW solar inverters to him and discovered that one was not a 5 kW. If the inverters were of different sizes, then it meant that even the values were different. The defendant averred that the plaintiff could not make a mistake of putting a 3-kW inverter amongst 5-Kw inverters. The plaintiff also failed to prepare an invoice or any other document showing details of the inverters. On the document showing proof of payment, the plaintiff did not state who brought the inverters and to whom it was delivered.

The defendant further submitted that the plaintiff lied that he was given a contract by Maersk. He averred that he never showed the plaintiff any contract with Maersk. Concerning the loan agreement, the defendant averred that the document placed before the court by the plaintiff was not the document that the parties signed. He admitted that the plaintiff gave him some money but the agreement that the plaintiff placed before the court was not the original one and that is why it had different details of the vehicle registration. That also explained why there were no witness signatures on the document, which made it irregular.

The analysis

Whether or not the defendant owes the plaintiff US$ 4 600.00

The court was called upon to determine whether the defendant owed the plaintiff the sum of US$4,600.00, by interrogating the evidence placed before it. In doing so, the court must recall that the party with the onus to prove any material averment in order to sustain their claim or defence must do so on a balance of probabilities.  See Chimeura v Chimeura and Ors HMA 15/24. It is an established law that the plaintiff in civil cases bears the onus to prove his claim on a balance of probabilities. See Marick Trading Private Limited v Double T Services (Private) Limited HH 54/17.

It was the plaintiff’s uncontroverted claim that he advanced money to the defendant by way of a loan and they signed an agreement to that effect. The plaintiff went a step further and placed a copy of the loan agreement before the court to substantiate his claim. The agreement contains a brief typed summary of what was agreed between the parties. The agreement reads in part as follows:

“I Tendayi Mushayi I.D Number 68-023263D-68 of address: 8 Glenara Avenue, Eastlea, Harare, am borrowing Godfrey Sibanda I.D number 67-047439-A67 sum of six thousand united states dollars (US$ 6000.00) to returned not later than 20 March 2020 against a security of Nissan Hard Body Double Cab Reg-AAL-2448 White in colour valued at US$7,000.00. Mr Sibanda will hold the vehicle REG-Book and will collect the vehicle if the amount is not paid within the stipulated dates above.”

The agreement also bears signatures appended next to several dates. On the agreement is an inscription in black ink that reads, ‘‘Change of dates were necessitated due lockdown”. This confirmed the plaintiff’s assertions that the defendant failed to pay back the loan in full on the agreed date, and the parties would agree on a new date. The plaintiff also averred that the defendant surrendered his vehicle registration book as security for the repayment of the loan. The defendant did not deny this arrangement.

The defendant averred that the agreement that the plaintiff placed before the court was not the original one. He admitted that the signature on the agreement was indeed his though he disputed the authenticity of the document. The claim by the defendant that the agreement placed before the court was not the original one is without merit in the absence of any other agreement that the defendant claimed was the authentic one.

The defendant’s submission that although the signature on the document was his, the agreement was nevertheless bogus sounds preposterous. In his plea and in his oral evidence, the defendant did not dispute that he received some money from the plaintiff, by way of a loan. He however disputed the amount claimed by the plaintiff and stated that he paid back the loan in full.  He placed reliance for the payment on a document which only reflected an amount of US$1,200.00, which does not equate to the sum of US$9,900.00, which also includes the inverters that the defendant took from the plaintiff.

As regards the solar inverters, the court found the plaintiff’s account of events more credible. The defendant failed to refute satisfactorily, the plaintiff’s claim that he converted the inverters to his own use. These had been left at number 8 Glennara road, the defendant’s place of residence. The same address appeared on the loan agreement as the defendant’s address. The defendant alleged that the plaintiff just dropped the solar inverters at Hippo Energy Technology, where the defendant was employed. He claimed not to have anything with the inverters, arguing that Hippo Energy Technologies would be best placed to explain their fate. However, in his plea, the defendant claimed that he had fully paid for the inverters. Further, in his summary of evidence, the defendant stated that he fully paid for everything that was advanced to him by the plaintiff and returned some defective inverters.

The plaintiff’s narrative was clear and consistent. He stated how he initially advanced the loan amount of US$6,000.00. In addition, he had also left some inverters worth US$ 3,900.00, with the defendant. The defendant’s total liability was US$ 9,900.00. It was partly reduced by the return of a 3-kW inverter worth US$500.00, as well payment of US$4,800.00 through some instalments. The outstanding amount of US$4, 600.00, which founds the plaintiff’s claim was therefore well explained in his evidence. The court found the plaintiff to be a credible witness whose account of events was easy to follow and relate with the pleadings.

The defendant did not place any documentary evidence to support his claim that he only borrowed US$4,200.00 from the plaintiff and that he managed to repay the loan in full.  He only placed before the court a certain document that he claimed the plaintiff would sign acknowledging receipt of the money. The document did not contain the amount that the defendant asserted to have paid to the plaintiff. When challenged to show proof of payment of the loan, the defendant stated under cross examination that there were certain amounts that the plaintiff did not sign for. The defendant’s evidence was unreliable, as confirmed by the inconsistencies between his own pleadings and his oral evidence.

In the final analysis, the court is satisfied that the plaintiff managed to prove his claim on a balance of probabilities, and that he is entitled to the relief that he seeks before this court.

Costs of suit

The general rule is that costs follow the event. I find no reason to depart from this general rule and award costs to the plaintiff as the successful party.

Disposition

Resultantly, it is ordered that:

Judgment is hereby entered in favour of the plaintiff.

The defendant shall pay to the plaintiff US$4,600.00 or the ZIG currency equivalent at the prevailing interbank rate on the date of payment within seven (7) days of this order.

In the alternative, the defendant shall surrender the Nissan Hardbody Registration number ABI 0269 to the plaintiff in full and final settlement of the debt of US$4,600.00.

In the event that the defendant fails to voluntarily surrender the said motor vehicle to the plaintiff following service of this order upon him, the deputy sheriff is hereby authorized to take the same and surrender it to the plaintiff.

The defendant shall pay the plaintiff’s costs of suit.

Musithu J: …………………………………………………………

Danziger & Partners, plaintiff’s legal practitioners

The defendant in person