Rainbow Tourism Group Limited v Medallion Engineering (Private) Limited

In or around November 2015, the plaintiff (Rainbow Tourism Group Limited) and defendant (Medallion Engineering (Private) Limited) entered into an agreement whereby the defendant would repair and fit 3,500 seat holding brackets at the plaintiff's Rainbow Towers Hotel and Conference Centre for a total cost of US$50,015.00. The plaintiff paid the full amount upfront. The plaintiff alleged that the defendant only repaired 1,816 seat brackets (all on the lower deck) and failed to repair the remaining 1,684 seat brackets on the upper terraces. An inspection in loco was conducted where the court observed that all lower deck seat brackets showed signs of repair (welding marks and fresh painting), while the upper deck seats bore only their original manufacturer's marks with no evidence of repair. The defendant's representative could not identify a single repaired bracket on the upper deck despite claiming to have completed all repairs.

• Whether the defendant breached its contractual obligation to repair and fit 1,684 seat brackets at the plaintiff's Rainbow Towers Hotel and Conference Centre
• Whether the defendant is liable to render specific performance for the outstanding works or alternatively refund the plaintiff the value of the outstanding works
• The requirements for granting an order of specific performance

The court ordered: (a) The defendant to repair and fit 1,684 seat brackets at the plaintiff's Rainbow Towers Hotel and Conference Centre within 30 days of the court order; or alternatively (b) Pay the plaintiff US$24,064.36 being the total cost of repairing the 1,684 seat brackets if the defendant fails to perform; (c) The defendant to pay interest on US$24,064.36 at the prescribed rate of 5% per annum calculated from the expiry of the 30-day period to date of payment in full; and (d) The defendant to pay costs of suit.

A party claiming specific performance must allege and prove: (i) the terms of the contract; (ii) compliance with any antecedent or reciprocal obligations; (iii) non-performance by the defendant; and (iv) claim specific performance. Where a party has paid in full for work to be performed and the defendant has only partially performed, the court may order specific performance within a specified time period, or alternatively order repayment of the proportionate value of unperformed work, together with interest and costs. Physical evidence of work performance (or lack thereof) will be given significant weight over uncorroborated testimony, particularly where an inspection in loco reveals objective facts contradicting a party's claims of performance.

The court noted that each bracket cost US$14.29 to repair based on the papers and figures filed of record. The court observed that the defendant's claim to have devised a special tool to repair brackets without opening them was not credible, particularly as it could not explain how all types of defects (circlips, shafts) could be repaired without breaking the manufacturer's seal. The court found it noteworthy that the defendant's director, who was personally in charge of the repairs, could not identify even a single repaired bracket on the upper deck during the inspection in loco, claiming he had forgotten which seats he repaired despite being responsible for the work.

This case demonstrates the Zimbabwean courts' approach to specific performance in contract law, particularly in construction/repair contracts. It reinforces the importance of inspection in loco as a valuable tool for determining disputed facts in cases involving physical work. The case illustrates the court's willingness to grant specific performance as a primary remedy with an alternative monetary remedy, and emphasizes the evidential burden on parties claiming to have performed contractual obligations, particularly where physical evidence should be readily available. The judgment also demonstrates the court's application of the balance of probabilities standard in civil matters and its approach to assessing credibility of witnesses where objective physical evidence contradicts testimony.