Callander Enterprises (Private) Limited and Makomborero Muza v Econet Wireless (Private) Limited

In 2008, the plaintiffs alleged they entered into a verbal contract with the defendant for the supply of shared phone SIM cards. The plaintiffs purchased 2500 SIM cards (later an additional 200) from Shared Phone (Pvt) Ltd in South Africa using their own funds, totaling $54,000. These SIM cards were delivered to the defendant for registration, activation, and allocation to payphone operators. The understanding was that the verbal agreement would later be reduced to writing with the plaintiffs receiving 10% on all recharges. In 2014, the plaintiffs discovered that the defendant had converted the payphones into "buddie lines" and was deriving benefits from them without payment. The plaintiffs had also previously brought a similar claim under HC 4236/15 which was withdrawn at pre-trial stage after prescription was raised. The parties had a separate written agreement dated 6 August 2008, distinct from the alleged verbal agreement.

• Whether the plaintiffs' claim had prescribed in terms of section 15(d) read with sections 16(1) and 16(3) of the Prescription Act [Chapter 8:11]
• Whether the plaintiffs' declaration disclosed a cause of action
• Whether the claim could be based on both breach of contract and unjust enrichment simultaneously
• Whether the essential elements of unjust enrichment were properly pleaded
• When prescription begins to run in relation to claims based on unjust enrichment versus breach of contract

The claim was dismissed with costs on a higher scale (legal practitioner and client scale).

A claim based on unjust enrichment must properly plead all five essential elements: (i) an enrichment; (ii) an impoverishment; (iii) a connection between enrichment and impoverishment; (iv) absence of justification for the enrichment and impoverishment; and (v) an absence of a remedy provided by law. A plaintiff cannot simultaneously plead breach of contract and unjust enrichment without pleading the latter in the alternative, as this renders the pleadings vague and embarrassing. A declaration must disclose a cause of action by pleading material facts sufficient to justify the right to bring the action. For a claim based on breach of contract, prescription begins to run when the debt becomes due and owing. Where pleadings fail to disclose a cause of action, the matter should not proceed to trial.

The court observed that the second plaintiff conceded he had not entered into any agreement in his personal capacity but only represented the first plaintiff. The court noted that the plaintiffs had been claiming this debt since 2011 and had previously brought a similar claim under HC 4236/15 which was withdrawn at pre-trial stage after prescription was raised. The court commented that when considering whether a claim discloses a cause of action, the court only considers the pleading and anything attached to it, citing Read v Brown 22 QBD 31. The court also noted that the pleadings showed the payphone SIM cards were purchased for distribution to the plaintiffs' customers, which undermined the unjust enrichment claim.

This case is significant in Zimbabwean jurisprudence (applicable to South African legal principles given the similarity in common law systems) for clarifying the requirements for properly pleading unjust enrichment claims and the consequences of attempting to plead alternative causes of action (breach of contract and unjust enrichment) without proper pleading. It emphasizes the importance of clearly stating material facts that constitute a cause of action and the strict requirements for pleading the five elements of unjust enrichment. The case also demonstrates the application of prescription principles and when prescription begins to run for different types of claims. It serves as a warning that defective pleadings will result in claims being struck out regardless of the potential merits, and that prescription is a complete defense that courts will consider as a preliminary matter.