Form Scaff (Private) Limited v Charles Linzi

On 22 October 2007, the defendant, a building contractor, hired scaffolding equipment from the plaintiff company for use at stand 2751 Hay hill Glen Lorne Harare. He paid a deposit of ZW$49 million and agreed to hire conditions including paying hire rates while equipment remained off the plaintiff's premises and paying catalogue price for equipment not returned or lost. On 27 February 2008, the defendant returned some equipment but not all. The defendant claimed the remaining equipment was collected by the plaintiff in December 2008 from Nicetime Supermarket where he was working in partnership with Norman Kapofu. He relied on witness Norman Kapofu who alleged that plaintiff's agents forcibly removed equipment in December 2008 and left a signed collection list. The plaintiff denied collecting the defendant's equipment, stating they had collected equipment in July 2008 from Nicetime but that equipment belonged to Fourth Fort, another hirer. The plaintiff issued invoices in USD from February 2009 onwards which the defendant received until May 2009. Summons was issued on 16 February 2011 claiming hire charges of US$1,340 per month from 1 February 2009 and the value of outstanding equipment at US$30,771.55.

• Whether the plaintiff collected the alleged outstanding scaffolding equipment from the defendant or any other person in 2008
• The value of the outstanding equipment and whether it should be calculated in United States dollars
• Whether the plaintiff is entitled to claim hire charges from 1 February 2009 in foreign currency and the amount of such hire fees
• Whether a lessor can unilaterally change the currency of hire charges following the introduction of a multicurrency regime

1. The defendant shall pay to the plaintiff the sum of US$1,340.00 per month as hire charges for the outstanding scaffolding equipment from 1 February 2009 to 1 February 2013, being the date of judgment. 2. The defendant shall pay to the plaintiff the sum of US$30,771.55 being the value of the outstanding scaffolding equipment. 3. The defendant shall pay the plaintiff's costs of suit.

In a hire contract claim for return of equipment or its value, once the lessor proves the equipment was hired and not returned, the onus shifts to the lessee to prove failure to return was due to causes for which they are not to blame (applying Manley Van Niekerk v Assegai Safaris 1977 (2) SA 416 (A)). Where a hire contract provides for payment at "then current" rates or prices, this refers to the rates current at the time of judgment, not contract formation. In a multicurrency environment, courts have discretion to award judgment in the currency that will adequately compensate the plaintiff and redress the injury suffered, particularly where the original currency has been rendered valueless (applying Kwindima v Mvundura 2009 (1) ZLR 168 (H)). A hirer's receipt of invoices in a new currency without challenge constitutes acquiescence to the currency change.

The court observed that the Zimbabwe dollar deposit of ZW$49 million could not be offset against the USD judgment amount as the Zimbabwe dollar had been effectively demonetized and carried no value at the date of judgment. The court noted that the defendant could not challenge the currency or rates of hire charges when his defense was that the goods had been returned, as he had no basis for disputing amounts owed for equipment he claimed was no longer in his possession. The court observed that it was obvious from the evidence that the equipment co-mingled with equipment hired by other contractors (J and K) and therefore the defendant was unable to return the specific equipment, justifying an order for payment of value rather than return of equipment.

This case is significant in Zimbabwean commercial law for establishing principles regarding: (1) the burden of proof on a lessee to prove that failure to return hired equipment was due to causes not attributable to them; (2) the ability of lessors to claim payment in functional currency at the time of judgment rather than the original currency of contract, particularly in the context of Zimbabwe's transition from Zimbabwe dollars to a multicurrency regime; (3) the interpretation of contractual terms referring to "current" prices as meaning prices current at the time of judgment or breach rather than contract formation; and (4) the evidential requirements for proving return of hired equipment, including the necessity of proper documentation such as collection lists and hire return notes.