Primac Enterprises (Private) Limited t/a Primac Telecomms v National Handicraft Centre (Private) Limited and Vice Security Company (Private) Limited

On 25 October 2005, the plaintiff (Primac Enterprises) and the first defendant (National Handicraft Centre) entered into a three-year lease agreement for premises known as the "boardroom". The lease agreement did not expressly cover security arrangements, but Clause (W) provided that "other matters not embraced by this agreement could always be discussed by both parties and streamlined accordingly". The plaintiff alleged that pursuant to this clause, the parties agreed that the first defendant would arrange and secure security for the premises and the plaintiff would pay a percentage of security charges. From 2005 to April 2008, the first defendant invoiced the plaintiff for security services (allegedly provided by the second defendant, Vice Security Company), and the plaintiff paid these invoices. On 18 April 2008, the leased premises were broken into and various computer equipment and software belonging to the plaintiff were stolen, valued at USD 5,753.90. The plaintiff claimed compensation from both defendants. The first defendant denied undertaking to provide security and claimed that individual tenants were responsible for their own security arrangements. The second defendant denied being contracted to provide security for the plaintiff's premises, testifying that it only had a contract with another tenant, Kingsport.

• Whether the first defendant undertook to provide security for the premises leased to the plaintiff pursuant to Clause (W) of the lease agreement
• Whether the second defendant was contracted to provide security services at the leased premises
• Whether the first defendant and/or second defendant are liable for the plaintiff's loss
• What is the reasonable value of the plaintiff's lost goods
• Whether damages suffered in Zimbabwean currency before the multi-currency system could be claimed and awarded in United States dollars
• Whether compensation should be based on replacement value of new goods or depreciated value of the stolen goods

1. The plaintiff's claim against the second defendant was dismissed with costs. 2. The first defendant was ordered to pay the plaintiff the sum of USD 5,753.90 as compensation for the stolen goods. 3. The first defendant was ordered to pay interest on the sum of USD 5,753.90 at the prescribed rate from the date of the order. 4. The first defendant was ordered to pay costs of suit.

1. Where a written lease agreement contains a clause permitting parties to discuss and agree on matters not covered by the written contract, subsequent oral agreements on such matters (including security arrangements) are enforceable and create binding contractual obligations. 2. The existence of an oral agreement can be established on a balance of probabilities through circumstantial evidence, including invoices, receipts, payments, and testimony regarding the parties' conduct over an extended period. 3. Where a party undertakes to provide a service (such as security) and receives payment for that service but fails to provide it, resulting in loss to the other party, that constitutes a breach of contract for which damages are recoverable. 4. In determining the appropriate currency for an award of damages, Zimbabwean courts have discretion to award judgment in the currency that will adequately compensate the plaintiff and redress the injury suffered. Where the local currency has been rendered valueless by inflation or is no longer in use, and the loss can be fairly calculated in foreign currency, the court may award damages in foreign currency even if the loss was originally suffered in local currency. 5. The principle of fair and adequate compensation requires that damages should reflect the true loss suffered by the plaintiff; where stolen goods must be replaced, compensation may be based on replacement value rather than depreciated value of the stolen items.

The court made observations about the application to amend pleadings under Rule 132 of the High Court Rules, 1971, noting that while the court has wide discretion to allow amendments "at any stage of the proceedings" for the purpose of "determining the real question in controversy between parties," such amendments should not be allowed where they appear designed to reconstruct a party's case after it has collapsed following evidence from key witnesses. The court also commented on the application for absolution from the instance, noting that where a plaintiff has presented a story that requires clear rebuttal from the other side, and has produced documentary evidence (receipts and invoices) that appear to confirm a contractual arrangement, it would be premature to grant absolution before hearing the defendant's evidence. The court endorsed the approach articulated by MAKARAU JP (as she then was) in Fabiola v Louis regarding judicial innovation in addressing the effects of currency collapse and inflation, emphasizing that courts should focus on ensuring that damages are meaningful and provide adequate compensation to plaintiffs rather than rigidly applying rules developed in stable currency environments.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It confirms that parties to a lease agreement can vary or add to the terms of their contract through subsequent oral agreements, particularly where the written contract contains an enabling clause permitting such variations. (2) It demonstrates how courts will determine the existence of oral agreements through examination of conduct and documentary evidence (invoices, receipts, payments). (3) Most importantly, it contributes to the jurisprudence on currency and damages in Zimbabwe, particularly during the transition from Zimbabwean dollars to the multi-currency system. The judgment affirms that courts have discretion to award damages in foreign currency even where the loss was originally suffered in local currency, where this is necessary to provide fair and adequate compensation. This approach prioritizes substantive justice over formalistic adherence to the currency in which the loss was originally denominated, particularly relevant in contexts of currency collapse and hyperinflation. (4) The case also addresses the principle of full compensation in damages, rejecting arguments for depreciation where replacement value is necessary to adequately compensate the injured party.