John Sway Mugadzahweta v Azviribasi Nengomasha

The plaintiff and defendant entered into an oral agreement whereby the defendant would construct a pre-cast wall (durawall) around the plaintiff's property upon payment of the full price. The plaintiff paid ZW$2,300,000,000-00 over time through bank transfers, cheques and cash. The defendant was to complete construction by 30 January 2008. The defendant failed to construct the wall to the agreed quality, using poor quality materials with an inadequate cement-to-sand ratio, causing the panels to collapse under their own weight. Despite written undertakings to complete the work, the defendant failed to do so. Photographic evidence (Ex 10) showed the poor state of the construction. The plaintiff eventually ejected the defendant from the site. The defendant claimed he was not put in sufficient funds and that the plaintiff was impatient. At the time of the hearing, the defendant had disbanded his pre-cast walling business due to Zimbabwe's economic collapse.

• Whether the plaintiff paid the defendant the full amount required for construction of the pre-cast wall
• Whether the defendant was in breach of the agreement
• Whether the plaintiff is entitled to restitution and the quantum thereof
• The proper measure of damages for breach of contract in construction cases
• Whether the plaintiff proved the actual costs incurred to complete the project

Absolution from the instance granted. The plaintiff's claim was dismissed for failure to prove damages.

In a breach of contract claim for construction work, while damages should be assessed by reference to the cost actually incurred by the owner in completing the work to achieve restitutio in integrum, the plaintiff must prove the actual costs incurred, not merely produce quotations or estimates of potential costs. The onus rests on the plaintiff to prove both that completion work was undertaken and the quantum of costs actually incurred. Failure to discharge this burden will result in the claim failing despite proof of breach. Credit must be given for any work completed by the defendant that remains usable.

The court observed that specific performance was not an appropriate remedy in this case for two reasons: first, the defendant had failed to perform in terms of the contract; and second, the defendant had disbanded his pre-cast walling business due to Zimbabwe's economic collapse. The court also noted that whether it is reasonable for an owner to approach a single contractor or obtain multiple quotations depends on the particular circumstances of each case. The court commented that the onus of proving that the owner acted unreasonably in incurring costs rests upon the contractor. The court further observed that exact and definitive values were capable of establishment in this case, suggesting that the plaintiff could have provided better evidence had proper diligence been exercised.

This case is significant for establishing the evidentiary requirements for proving damages in construction breach of contract cases in Zimbabwean law. It emphasizes that a plaintiff seeking damages must prove actual costs incurred in remedying the breach, not merely hypothetical or estimated costs based on quotations. The case demonstrates the strict application of the restitutio in integrum principle and the requirement for concrete proof of loss, even where breach of contract is established. It also illustrates the court's willingness to grant absolution from the instance where a plaintiff fails to discharge the onus of proof on quantum, despite succeeding on liability.