THE Supreme Court has ordered the MDC to pay a South
African company and a Bulawayo garment firm nearly R5 million for party regalia
supplied to the opposition party during the 2008 elections.
The party ordered 200 000 T- shirts and head scarves
commonly known as “doeks and bandanas” from a South African wholesale textile
company and a Bulawayo garment manufacturing firm for use during its campaign
ahead of the 2008 Presidential election runoff.
The late Mr Morgan Tsvangirai later opted out alleging acts
of violence against his party supporters.
The manufacturing firms, Cabat Trade and Finance (Pvt) Ltd
of Johannesburg in South Africa and Security Mills (Pvt) Ltd of Belmont in
Bulawayo charged the party about R 4, 6 million for the consignment but it
failed to pay.
The two firms sued the opposition party at the High Court
and the MDC won the case last year but the matter spilled into the Supreme
Court on appeal.
Supreme Court judge Justice Bharat Patel sitting with
Deputy Chief Justice Elizabeth Gwaunza and acting judge of appeal Justice
Martin Makonese on circuit in Bulawayo set aside the High Court judgment.
He ordered MDC to pay Security Mills R4, 5 million together
with five percent interest calculated from April 2008 to the date of final
payment.
“It is accordingly ordered that appeal be and hereby
allowed with costs. The judgment of the court a quo is set aside and
substituted with a judgment ordering the respondent (MDC ) to pay the second
plaintiff (Security Mills) the sum of R4 560 935,37 together with prescribed
rate of five percent per annum,” ruled Justice Patel.
The judge also ordered MDC to pay the legal costs incurred
by Security Mills.
The Supreme Court ruling follows an appeal by Security
Mills against Bulawayo High Court Justice Maxwell Takuva’s judgment in favour
of MDC.
According to court papers, sometime in April 2008, then MDC
senior member Mr Eddie Cross and Mr Simon Spooner entered into an oral contract
with Mr Lawrence Zlattner, representing Security Mills, in terms of which the
former ordered on behalf of the party material for the 2008 elections.
Mr Cross and Mr Spooner made an undertaking to pay as MDC
agents but they defaulted after Security Mills had supplied the consignment.
In dismissing the application, Justice Takuva said Mr
Zlattner took a conscious risk and acted recklessly without ascertaining who
exactly he was contracting with.
He said Security Mills failed to discharge the onus of
showing that by reason of the MDC-T’s conduct they had been led to supply the
goods in question on the strength of representations made by the opposition
party.
MDC, in its heads of argument filed by its lawyer Advocate
Kucaca Phulu who was instructed by Mwonzora and Associates, argued that Mr
Cross and Mr Spooner did not have “express authority” to enter into a contract
with the manufacturing company thus there was no legal basis of suing the
party.
He said it was quite clear that the contract was entered by
Mr Spooner not on behalf of MDC-T but for the benefit of the party.
The party further argued that neither Mr Cross nor Mr
Spooner had authority to enter into contracts on its behalf. The party also
denied that it had purchased anything from Cabat Trade and Finance.
Security Mills, through its lawyer Advocate Richard Fitches
who was instructed by Joel Pincus Konson and Wolhuter, said neither Mr Cross
nor Mr Spooner and or the MDC paid for all the T-shirts, bandanas, doeks and
other material despite an agreement entered by the parties.
Adv Fitches, in his heads of argument, said Justice Takuva
misdirected himself when he failed to take note of the fact that the MDC
failure to pay the money was an act of unjust enrichment. Chronicle
0 comments:
Post a Comment