A chrome mining firm battling to recover its 20-tonne excavator from the miner that had hired it has prevailed before the High Court (Commercial Division) and was awarded more than US$195 000 plus interest in hire charges and holding-over damages.
African Chrome Fields Limited instituted legal proceedings against Mr Adorn Samambwa in a bid to recover arrears amounting to US$51 450 plus holding over damages calculated at US$2 250 per week effectively from October 16, 2022.
African Chrome is a private black-owned mining company with mining operations along the Great Dyke in Midlands.
Mr Samambwa refused to surrender the power shovel after the chrome-mining firm cancelled the hire-agreement with him over rent arrears, and he was claiming to have bought the power-shovel from the company.
But Justice Bongani Ndlovu ruled in favour of African Chrome, noting that it had proved its case on balance of probabilities and the court nullified the lease agreement between the two for the hire of a 20-tonne Rondebult Excavator.
Mr Samambwa was ordered to deliver the excavator to African Chrome within 48 hours of notice of the court order, with the Sheriff of the High Court authorised to seize it and deliver it to African Chrome within 48 hours of any failure to do so, said the judge.
He was ordered to pay the total of US$51,450 in hire fees running from December 31 2021 to October 15 2022, plus holding over damages calculated at the rate of US$2 250.00 per week with effect from October 16 2022 to the date of the return of the Rondebult Excavator.
The damages are payable in ZWL$ at the prevailing interbank exchange rate on the date of payment plus interest on all the amounts due, at the prescribed rate from the date of summons to the date of full and final payment.
In his ruling, Justice Ndlovu found that the witnesses for African Chrome were credible in articulating the case for the mining company.
The same could, however, be said about Mr Samambwa whose testimony inconsistent and his behaviour inconsistent with someone who had bought an excavator and fully paid for it.
The court further noted that Mr Samambwa’s conduct was inconsistent with someone dealing with an individual he did not trust.
“On a balance of probabilities, plaintiff has proven its claim that it did not sell its excavator to defendant and defendant defaulted in servicing the lease agreement and had the excavator against its will,” the court said.
“The unsanctioned possession is causing plaintiff financial prejudice justifying an order for holding-over damages.”
The court heard that between April and May 2022, Mr Samambwa receded into arrears, and African Chrome sought to get back its excavator.
And on June 15 2022, African Chrome human resources manager Mr Laszlo Takacs went to Mr Samambwa with a lowbed truck to uplift the excavator but the man refused to release it.
E-mails were dispatched to Samambwa regarding the arrears and in June 2022, arrear rentals had accumulated to US$10 900.
He in turn said he had prepared a schedule for payments made and amounts owing.
African Chrome wrote a letter of demand in July 2022 but that yielded nothing leading to the start of legal proceedings.
According to African Chrome, the excavator was never sold to Samambwa but it had been leased to him for six months and thereafter it continued on the same terms and conditions.
In his defence to the claim, Samambwa argued that after the expiry of the written lease agreement, a sale agreement was entered into between the parties in terms of which African Chrome sold to him the excavator for US$70 000 which was to be paid on or before June 30 2022.
He argued, through his legal counsel, that he could not return the excavator because he bought it and paid the purchase price in full.
But Mr Samambwa also told the court that he was never issued any receipts when he made payments both for rent and purchase.
The excavator purchase price, he said, was made in instalments which were to be paid on or before June 30 2022 with no specific figure per month as all that the mining company wanted was cash flow to keep it afloat.
Mr Samambwa does not have the licence book for the excavator in question. Mr Ignatius Mupfiga and Mr Wellington Davira of Gundu, Dube and Pamacheche Legal Practitioners acted for African Chrome while Mr M. Hore and Mr A. Chingwe of Hore and Partners represented Mr Samambwa.
SOURCE : HERALD
