Takawira Jongoni v Oren Rukwava

The plaintiff and defendant are friends who had known each other for some time and lived in the same neighborhood. In April 2021, the parties entered into a transaction involving two Mercedes Benz vehicles - the plaintiff's E class 300 (registration AFC 5822) and the defendant's GL 320 (registration AFG 5621). The plaintiff claimed he loaned the defendant US$2,500 and took the GL 320 as security, while temporarily lending his E class to the defendant. The defendant contended they entered into a "swop and top" agreement where they exchanged vehicles, with the plaintiff agreeing to pay US$10,000 (US$5,000 cash plus a residential stand valued at US$5,000) to account for the difference in value between the GL 320 (valued at US$25,000) and the E class 300 (valued at US$13,000). The plaintiff paid an initial US$2,500. When the GL 320 developed mechanical problems, the plaintiff demanded his E class back, but the defendant refused, claiming the plaintiff still owed US$2,500 cash and the stand. The parties exchanged vehicles and drove them, went together to a tyre dealer where the defendant purchased tyres for the E class, and eventually reported the matter to the police who referred them to civil court.

• Whether the defendant owed the plaintiff US$2,500 as money advanced by way of loan
• Whether the defendant must surrender the plaintiff's Mercedes Benz E class (AFC 5822) to the plaintiff
• Whether the parties entered into a 'swop and top' agreement for the exchange of motor vehicles with the plaintiff topping up US$10,000
• Whether the defendant is owed US$2,500 plus an immovable property valued at US$5,000 under the swop and top agreement
• Whether the defendant is entitled to US$5,000 as damages if the plaintiff fails to deliver the immovable property
• Which party discharged the onus of proof on the balance of probabilities

1. Plaintiff's claim dismissed. 2. Defendant's claim in reconvention granted with costs on the legal practitioner and client scale. 3. Plaintiff ordered to pay defendant US$2,500 or ZWL equivalent at the prevailing RBZ rate on the day of payment. 4. Plaintiff ordered to deliver an immovable property (a stand) valued at US$5,000. 5. Alternatively, plaintiff ordered to pay defendant US$7,500 or ZWL equivalent at the prevailing RBZ rate, being the total of the US$2,500 balance and US$5,000 value of the stand.

The binding legal principles established are: (1) A party seeking a remedy bears the onus of proving the facts asserted to ground that remedy on a balance of probabilities. (2) Where competing versions of an agreement are presented, the court must assess the probability and credibility of each version, examining whether the conduct of the parties is consistent with their assertions. (3) A "swop and top" agreement for the exchange of motor vehicles need not be reduced to writing to be enforceable; such an agreement can be proved through the conduct of the parties and surrounding circumstances. (4) Where a party's version of events contains inherent improbabilities and is contradicted by their own conduct and admissions, the court is entitled to reject that version as not reasonably possibly true. (5) Corroborative evidence from independent witnesses strengthens the credibility of a party's version of events.

The court observed that the plaintiff and defendant were not strangers to each other, having known each other for some time, living in the same neighborhood, and having previously entered into similar transactions with each other. This observation suggests that the informal nature of their agreement was consistent with their established relationship and prior course of dealing. The court also noted that the fact the agreement was not reduced to writing was "neither here nor there," suggesting that in the context of informal transactions between parties with an established relationship, the absence of written formalities does not preclude enforcement where the agreement can otherwise be established. The court's comment that it "boggles the mind" why certain actions were taken if the plaintiff's version were true reflects judicial assessment of commercial reasonableness as a factor in evaluating competing versions of events.

This case demonstrates the Zimbabwean courts' approach to determining the true nature of agreements between parties based on their conduct rather than their assertions. It illustrates the application of evidentiary principles regarding burden of proof and the assessment of credibility and probability in civil disputes. The case is significant for establishing that informal "swop and top" agreements for motor vehicles can be enforced despite not being reduced to writing, where the parties' conduct and surrounding circumstances clearly demonstrate the existence and terms of such an agreement. It also reinforces that courts will scrutinize the commercial reasonableness and logical coherence of a party's version of events when determining which party has discharged the burden of proof.