M M Mavundukire t/a Mungani Construction v Dovurwi Investments (Private) Limited

On 20 September 1987, the appellant (Mungani), a building contractor, entered into an agreement with the respondent (Dovurwi) to restore, renovate and repair improvements on certain stands. The contract price was $54,000.00, payable in three stages. The work was to be completed by 31 December 1987. Dovurwi was to supply all building materials while Mungani was to provide labor, tools and equipment. The work was not completed by the deadline but only on 14 August 1988. Mungani was paid $34,000.00 directly and the respondent paid $3,450.00 to one of Mungani's subcontractors, leaving a balance of $16,550.00. Mungani claimed payment of the balance plus additional work allegedly done. Dovurwi counterclaimed for damages, primarily for loss of rent due to the delay in completion, as it could not lease the premises to the Government for office accommodation.

• Whether Mungani was entitled to payment for alleged extra work done beyond the contract
• Whether Mungani was liable for damages for delay in completing the work
• Whether the respondent was entitled to claim loss of rent as damages for the delay
• The quantum of damages recoverable for breach of a construction contract where time was of the essence

The appeal was dismissed with costs. The order of the High Court was amended in paragraph 1 by substituting $77,217.00 for $87,317.00. Subject to that alteration, the judgment of the High Court was confirmed.

Where a building contractor delays in completing work and has been warned that time is of the essence, and where the contractor knows that the owner intends to lease the premises for a specific purpose, loss of rent is a recoverable head of damages for breach of contract. The period of delay for which damages are recoverable runs from the extended deadline (where an extension has been granted by the owner) to the date of actual completion. Claims for additional work beyond the contract require credible evidence and proper documentation; unsupported claims by unreliable witnesses will be rejected. The contractor bears the burden of proving both entitlement to additional payment and any defenses to claims for delay.

The court made observations about the quality of evidence and witnesses, noting that Mungani was "a very poor witness" who "contradicted himself on a number of occasions and was not very forthright in answering questions under cross-examination." The court also noted that he did not keep any notes or records concerning the work, his memory was "rather hazy and very selective," and his witnesses "were equally unreliable and did little to bolster his case." These observations, while not strictly necessary for the decision, emphasize the importance of maintaining proper records in construction contracts and the consequences of failing to do so in litigation.

This case is significant in Zimbabwean contract and construction law for establishing principles regarding: (1) the importance of credible evidence and record-keeping by contractors in construction disputes; (2) the assessment of damages for delay in construction contracts, particularly loss of rent as a recoverable head of damage; (3) the application of the principle that time can become of the essence through subsequent conduct and correspondence even if not originally so specified; and (4) the foreseeability test for damages, showing that where a contractor knows the purpose for which premises are being renovated (office rental), loss of rent is a foreseeable and recoverable consequence of delay.