The Toyota Land Cruiser Prado VX was imported from South
Africa in 2019, but was seized by the Zimbabwe Revenue Authority two years
later after it turned out that the importation had been done fraudulently.
After protracted, but unsuccessful engagements with the car
dealer, Mr Kudakwashe Matyokurebwa, owner of Confined Auto Private Limited, the
show society instituted legal proceedings against him.
In its suit brought before the High Court, the show society
wanted a refund of the purchase price and damages amounting to the difference
between the refund value and the replacement cost of the motor vehicle. This in
total would be the sum required to buy a legally-imported replacement.
The society argued that Mr Matyokurebwa and his company
breached an implied warranty against “eviction”, alternatively fraudulently
misrepresented to it that the vehicle had been lawfully imported causing it to
act on that misrepresentation to its prejudice.
But in his defence, Mr Matyokurebwa argued that the show
society’s claim was unrealistic because the vehicle had been used before its
seizure and so had diminished in value. He further claimed that at the time of
its seizure, the vehicle concerned had been involved in two traffic accidents
which further diminished its value. He set the value of the vehicle at
US$38,000, at the time of its seizure.
The matter was referred for civil trial after the parties
reached a stalemate following a case management meeting before Justice Bongani
Ndlovu.
The court had to determine whether or not there was a buyer
and seller relationship between the parties and whether or not Mr Matyokurebwa
fraudulently misrepresented to the show society that the vehicle had been
lawfully imported.
On the balance of probabilities, the standard of proof in a
civil hearing, Justice Ndlovu found merit in the claim and ruled in the
society’s favour and ordered the company, Confined Auto, to pay the society
US$87 000.
In addition, Confined Auto was ordered to pay interest at
the prescribed rate calculated from the date of summons to date of full and
final payment.
The court, however, threw out the show society’s claims
against Mr Matyokurebwa in his personal capacity.
During the legal arguments, the show society said there was
a verbal agreement of sale for Confined Auto to sell the vehicle to the society
for US$87 000 and after its bank transferred the money, the society received
the vehicle. The society argued that the standard and appropriate remedy was a
full refund.
Mr Matyokurebwa counter-argued that the show society
instructed Confide Auto to act as its agent to import a motor vehicle from
South Africa on its behalf for a commission of US$3 000.
This, the card dealer argued, was simply facilitating the
society’s internal processes for the release of the purchase price, as an
agent, not the seller. The court in the end agreed it had been a sale. Herald
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