JENA MINES (PVT) LTD
AMTEC (PVT) LTD
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GARWE JA & OMERJEE AJA
HARARE, MARCH 27, 2012 & JUNE 24, 2013
J R Tsivama, for the appellant
H Zhou, for the respondent
ZIYAMBI JA: This is an appeal against the judgment of the High Court dismissing with costs a claim by the appellant seeking, inter alia, specific performance of a contract. The appellant issued summons in the High Court, against the respondent in July 2004. It was alleged in the declaration as follows:
“3. In April 2004 the plaintiff purchased a motor vehicle T.3500 Truck from the plaintiff for $133 million.
4. In terms of the defendant’s quotation for the truck delivery of the motor vehicle was to be done within one week of payment of the purchase price.
5. The plaintiff duly paid the full purchase price on the 22nd of April 2004 but despite demand defendant has failed or neglected to deliver the truck.
6. As a result of the defendant’s failure to deliver the truck by the 28th of April 2004 in terms of their quotation plaintiff had no option but to hire alternative transportation at a total cost of $58 260 300 as at 30 June 2004”.
The respondent denied liability. It alleged that a pro forma invoice for the purchase of a Mazda T35 truck was given to the appellant on 23 February 2004 but the appellant only placed an official order on 20 April 2004. It was indicated on the pro forma invoice that “PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE.” While it was stated in the pro forma that delivery would be effected within a week, that was meant to be one week from the date of placement of the official order and the conclusion of a binding contract for the purchase assuming the appellant was going to place an order, and make payment, immediately. At the time of issue of the pro forma invoice no agreement had been concluded by the parties. By the time the appellant placed an order it had already been appraised of the difficulties and delay then obtaining in procuring the T35 truck. The respondent contended that it was under no legal obligation to deliver the truck within one week of 22 April 2004 the date when the purchase price was paid by the appellant.