Marlon Chikuni and Others v Mahuni Gidiri Legal Practitioners

In 2022, the second appellant (Puroil (Pvt) Ltd), represented by the first appellant (Marlon Chikuni), entered into a contractual agreement to purchase 400,000 litres of fuel at US$1 per litre from R-Powered Solutions (Pvt) Ltd, a South African company represented by the respondent law firm. The appellants paid US$400,000 into the respondent's trust account. R-Powered Solutions only delivered 40,000 litres of fuel, resulting in a shortfall of 360,000 litres (US$360,000). During the impasse over the undelivered fuel, the respondent provided US$19,500 to the appellants to mitigate their cash flow challenges. The appellants subsequently recovered US$360,000 through legal proceedings. When the respondent sought return of the US$19,500, the appellants refused, contending the funds belonged to them as they had been withdrawn from the trust account. The respondent sued for return of the US$19,500. The Magistrates Court ruled in favour of the respondent, and the appellants appealed to the High Court.

• Whether the principle of unjust enrichment applies to the matter when it was not specifically pleaded by the parties
• Whether the appellants were legally indebted to the respondent for US$19,500
• Whether funds deposited into the respondent's trust account remained the appellants' property until fuel delivery
• Whether the respondent had an obligation to account to the appellants for all funds in the trust account
• Whether the court a quo erred in deciding the matter on the basis of unjust enrichment when this was not raised by the parties

The appeal is hereby dismissed with costs.

A court may properly decide a case on the basis of unjust enrichment even where it is not specifically pleaded, provided that: (1) the evidence led at trial fully canvasses all the requirements of unjust enrichment, and (2) the opposing party would not be prejudiced by the court relying on this legal basis. All four elements of unjust enrichment must be established: the defendant must be enriched; the plaintiff must suffer impoverishment; the enrichment must occur at the plaintiff's expense; and the enrichment must lack legal justification (sine causa). Where a party has received more in total value than they originally paid or were entitled to receive under a contract, they are unjustly enriched and must return the excess amount, regardless of the accounting treatment or characterization of the funds in trust accounts.

The court made several non-binding observations: (1) that further discussion on the technical point about trust account ownership was "unnecessary and a waste of industry" - the court preferred to focus on the practical question of whether parties retained funds not due to them; (2) the court noted that the appellants' argument that the money belonged to the respondent's client was "stillborn" because the appellants were not agents of that client; (3) the court observed that "it is not brainier that the US$19,500 was an overpayment" - suggesting the conclusion was obvious from simple arithmetic (US$360,000 + US$40,000 + US$19,500 exceeded the original US$400,000 payment); (4) the judgment cited academic authority (Du Plessis, The South African Law of Unjustified Enrichment) and South African case law, indicating Zimbabwean courts continue to draw on South African legal principles in this area.

This case is significant in Zimbabwean jurisprudence for confirming that: (1) courts may decide cases on the basis of unjust enrichment even when not specifically pleaded, provided the evidence fully canvasses the issue and the opposing party is not prejudiced; (2) the principle follows South African precedent allowing courts to award relief on the correct legal basis even when incorrectly pleaded; (3) the four elements of unjust enrichment (enrichment of defendant, impoverishment of plaintiff, enrichment at plaintiff's expense, and lack of legal justification) must all be satisfied; (4) in commercial transactions, courts will focus on the substance of what parties received versus what they were entitled to, rather than technical arguments about trust account characterization; and (5) parties cannot retain overpayments simply because funds passed through trust accounts. The judgment also reinforces fiduciary duties of legal practitioners managing client funds.