Nebula Agencies (Pvt) Ltd v French & Smith T/A Customs Services

The Applicant imported Pre-Painted Galvanized Iron (PPGI) sheets for manufacturing roofing sheets and contracted the Respondent to clear the goods from Beira Port and transport them to Harare. The Applicant paid the Respondent the agreed amounts. The Respondent cleared the goods and began transportation, but the vehicle was involved in an accident before Marondera in March 2021, damaging the sheets beyond use. The Respondent initially acknowledged liability and undertook efforts to replace the damaged sheets, providing updates to the Applicant. After prolonged non-performance, the Applicant's attorneys sent a letter of demand. Only then did the Respondent, through its legal practitioners, deny liability, claiming it had contracted out of liability and that its efforts to assist were purely ex gratia gestures to preserve business relations.

• Whether there were material disputes of fact necessitating action proceedings rather than application proceedings
• Whether the parties had contracted out of liability for loss of goods in transit
• Whether the Respondent's efforts to replace the damaged goods were ex gratia or an acknowledgment of contractual liability
• Whether the prayer for relief was defective in claiming both specific performance and damages rather than damages in the alternative

1. The Respondent to deliver seven (7) rolls of Pre-Painted Galvanised Iron within 7 days of service of the order. 2. The Respondent to pay USD$39,307.91 as damages suffered by the Applicant due to the Respondent's non-performance. 3. The Respondent to pay costs of suit on an attorney-client scale.

1. A party may claim both specific performance and damages for delay in performance where these are distinct and non-mutually exclusive remedies, and where specific performance would purge the mora but not address damage suffered due to delay. 2. Disputes of fact raised in opposition to an application must be real and genuine, not fanciful or afterthoughts arising only after legal representation. 3. Contemporaneous conduct and communications between parties are determinative of their contractual intentions and acknowledgment of liability. 4. Damages for breach of contract are intended to place the innocent party in the position they would have been in had the contract been properly performed. 5. A party cannot belatedly deny liability after a course of conduct acknowledging such liability, especially when such denial contradicts previous communications and actions.

The court observed that the Respondent's denial of liability was incongruent with the communications between parties and appeared to be based on ill-advice or failure to provide full advice to the legal practitioner. The court noted that loss of future profits is prospective, not historical, and that the Respondent's request for historical profits or returns from ZIMRA was a misdirection. The court also commented that there was nothing anomalous or illegal about praying for both specific performance and damages, and that whether they should be claimed in the alternative depends on the circumstances of each case.

This case is significant in Zimbabwean contract law for establishing that specific performance and damages for delay in performance are not mutually exclusive remedies and may be claimed together where appropriate. It reinforces the principle that disputes of fact raised in opposition to applications must be genuine and not afterthoughts manufactured after legal advice. The case also demonstrates the importance of contemporaneous conduct and communications in determining contractual obligations and liability, and confirms that damages for breach of contract are intended to place the innocent party in the position they would have been in had the contract been properly performed, including loss of future profits.