Court papers clearly states that Chitungwiza Municipality
had submitted the 2007 agreement between them and Delatfin were they would
repair the machines and cover the costs with an agreed rental fee.
The Municipality went on to accuse Delatfin of overturning
the agreement after receiving the council equipment and demanded US$265 640 as
costs.
However Delatfin admitted that there was a written
agreement of hire between the parties but on the terms that they will repair
the Municipality’s vehicles, machine plants and equipment, they will pay
Delatfin’s bills for the repair costs by hiring equipment to the Delatfin.
Delatfin also claimed it repaired the Municipality’s
equipment and raised a bill for US$281 840.00 with only US$16 200.00 being paid
by the Municipality.
The Chitungwiza Municipality however relied on Audit
Manager witness Admire Chipunza who confirmed the contracts and he referred the
memorandum of understanding for use on earthmoving machines.
He stated that the agreement expired and was supposed to
return the equipment. The witness further denied that they had to pay Delatfin
saying their money for repair was to be set off by hiring the equipment.
The witness was however, not privy to the agreement as he
was not directly involved.
Delatfin Chief Executive Officer Felix Munyaradzi told the
court that Chitungwiza Municipality was willing to get their equipment repaired,
but they had no money to pay for the repairs.
The businessman told the court that they were then shown a
number of broken down equipment from the workshop.
The witness said in one of the meetings they inquired with
Municipality how they were to proceed with agreement given they wanted the
return of the serviced equipment and it was at that meeting that Chitungwiza
then undertook to pay Delatfin’s bills for repair costs as a departure from the
original agreement.
Munyaradzi submitted that he accepted the terms it was on
the basis of the new agreement that he wrote a letter on 17 August 2007 asking
Chitungwiza to settle their bill of US$281 840 and they made part payment of
US$16000 leaving a balance of US$265 640 which forms the basis of the
defendant’s counter claim.
However, in his ruling, Justice Jacob Manzunzu said
Delatfin cannot hold back onto Chitungwiza Municipality’s property without
instituting proceedings for recovery.
“The defendant be and is hereby ordered to return to the
plaintiff forthwith, front-end loader: registration number 511-631, grader
champion: Registration number 688-808D, bull dozer D4: Registration number
395-551W, bull dozer D7: Registration number 688-488F and bull dozer Slewa D6,”
Justice Manzunzu’s judgment read.
Aggrieved by Justice Manzunzu’s judgement, Delatfin approached
the Supreme Court bench led by Justice Tendai Uchena, Justice George Chiweshe
and Justice Chitakunye, who allowed the appeal and set aside the High Court
judgement.
The three judges after reading the documents ruled that:
“It is ordered that the appeal be and is hereby allowed with costs.”
“The judgement of the court is set aside and substituted by
the following: “The plaintiff’s claim be and is hereby dismissed with costs.” Herald
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