DHERECHEM CHEMCALS (PRIVATE) LIMITED v GRAIN MARKETING BOARD (314 of 2025) [2025] ZWHHC 314 (21 May 2025)

7 HH 314 - 25 HCH 2399/22 ADHERECHEM CHEMCALS (PRIVATE) LIMITED versus GRAIN MARKETING BOARD HIGH COURT OF ZIMBABWE MUSHURE J HARARE, 6 November, 2 December 2024, 24 January 2025 & 21 May 2025 Civil trial T. S. T. Dzvetero with P. Patisani for the plaintiff I. Chikaka for the defendant MUSHURE J: INTRODUCTION The plaintiff is a company incorporated in terms of the laws of Zimbabwe. The defendant is a body corporate established in terms of s3 of the Grain Marketing Act [Chapter 18:14]. The material facts of this matter are largely common cause and are not seriously disputed. I may summarise them as follows: The plaintiff and the defendant entered into an agreement in terms of which the defendant was to purchase from the plaintiff one thousand bitumised tarpaulins to cover its grain at a unit price of USD 3 622.50 (three thousand six hundred and twenty two United States dollars fifty cents). The total contract value was agreed to be three million six-hundred and twenty-two thousand five hundred United States dollars (USD3 622 500.00). The agreement was reduced to writing and signed by both parties in April 2018 under contract number GMB/PROC/37/03/18. It was a material term of the agreement that the bitumised tarpaulins conform to the Zimbabwe Standard Specification for Tarpaulins. They were to be eighteen metres long and nine metres wide. The tarpaulins were to be made of plain woven cotton fabric, and to have tabs and eyelets. They were required to be bitumen proofed and to be water resistant in accordance with the Standards Association of Zimbabwe (‘SAZ’) standards. It was also a material term of the agreement that the plaintiff would submit the samples of proofed and unproofed fabric for testing by SAZ. The test results were to be submitted to the defendant. A sample of one complete tarpaulin was to be delivered to the defendant for verification and conformance check before delivery of the full order. In accordance with the contract, the plaintiff duly submitted samples for testing. The samples failed a leaking test. The defendant considered that such a fault would cause damage to grain on its storage platforms and resolved to cancel the contract. The cancellation was communicated to the plaintiff on 1 October 2018. Several engagements for the sample to be retested between the plaintiff’s and the defendant’s representatives ensued. The plaintiff did not get joy from these engagements and on 5 October 2018, it appealed to the defendant’s Chief Executive Officer (‘CEO’) for his intervention. On 22 October 2018, the defendant reinstated the contract subject to the conditions that the plaintiff would meet all testing costs for all the bitumised tarpaulins to be supplied, and that a revised delivery schedule and a sample for testing would be submitted. An addendum to the contract incorporating the revised delivery schedule was done. This addendum was however not signed by the defendant. On 10 April 2019, purportedly acting in terms of s42 (1)(b) of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] (‘the PPDPA Act’), the defendant cancelled the contract. The cancellation was attributed to budgetary constraints. This was confirmed by the then Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement, in response to the plaintiff’s letter challenging the cancellation on that basis. Following the cancellation, the plaintiff instituted these action proceedings against the defendant seeking an order declaring the cancellation of the contract null and void. The plaintiff seeks specific performance, or if specific performance is no longer possible, damages in the sum of three hundred and fifty-five thousand United States dollars being the capital outlay incurred by the plaintiff towards manufacturing the contracted bitumised tarpaulins; seven hundred and eighty-five thousand Rand (R785 000) being the deposit paid by the plaintiff for the sample cloth synthesis; and nine hundred and five thousand six hundred and twenty-five United States dollars (USD 905 625) being the net profit that the plaintiff would have earned had the contract been performed. The plaintiff also seeks interest on the claimed amounts at the prescribed rate from the date of issue of summons to the date of full payment, both dates included. Finally, the plaintiff seeks costs of suit on an attorney to client scale. After the plaintiff instituted summons, the defendant entered appearance to defend. In its plea, the defendant denies that the contract was reinstated because it had been terminated. The purported addendum was void because there ceased to be a contract and there was need to go back to tender by operation of the law. The defendant argues that everything that followed the initial termination of the contract was of no effect, and that the plaintiff had breached the contract by supplying defective materials in the first instance leading to the first cancellation. The defendant contends that the damages alleged were thumb sucked and the plaintiff is supposed to prove each and every amount claimed. At the conclusion of a pre-trial conference before a Judge, it was resolved that the matter be referred to trial on the following issues:- Whether or not the cancellation of contract no. Amis/PRO/37/03/18 entered into between the parties is valid. Whether or not Plaintiff is entitled to specific performance. Whether or not Plaintiff is entitled to damages and loss of profit by the Defendant. If so, what amount is it entitled to? PROCEEDINGS BEFORE THIS COURT At the trial of the matter, the plaintiff gave evidence through its managing director, Nkosana Khumalo. His evidence was to a large extent a narration of the facts which are common cause that I have already referred to above. He testified that the plaintiff responded to a tender flighted by the defendant in January/ February of 2018 for the supply of bitumised tarpaulins. The tender was valued at US$3 million. He further testified that the plaintiff won the tender and they entered into a contract. The plaintiff started working on supplying a sample. The plaintiff had to purchase a minimum order quantity as set by the supplier of the materials. A sample was presented to SAZ and a report produced. It was his evidence that the plaintiff was not involved in the testing of the sample at the defendant’s premises. The plaintiff’s representatives requested that the test be done in their presence. This was not done but the defendant’s CEO later intervened and it was agreed that a retest would be done. They were promised an invitation to the process but this was never done. He reasoned that the conditions for the first test were not very ideal because the tent was placed against treated gum poles and the extent of the tent was such that the defendant’s officials would step on it while walking. He stated that he found it difficult to perform the contract now because of the relationship and the contract prices are likely to have gone up by now. On being cross-examined, he admitted that the plaintiff had not placed any evidence before the court to prove the costs it allegedly incurred to source the sample. He also admitted that the plaintiff had not supplied the bitumised tarpaulins. He accepted that it was a specific term of the contract that the defendant would conduct the test of the sample and it was not a requirement that the test would be conducted in the plaintiff’s presence. He also accepted that the defendant had communicated the fact that the sample had failed a water resistance test. He said when the plaintiff did its own test the defendant refused to come and witness the test.During re-examination, it emerged that while it was resolved that the test be redone, the defendant’s quality assurance manager had refused to conduct the test on the basis that the sample had gone in and out of the defendant’s premises. With this sole witness’ evidence, the plaintiff closed its case. The defendant mounted an application for absolution from the instance, which I dismissed for reasons on record. An intention to appeal against the dismissal of the application followed but was not pursued after I also dismissed an application for leave to appeal to the Supreme Court. The defendant’s case then commenced. Two witnesses took to the witness stand on behalf of the defendant. The first witness, Sandra Alumenda, is the defendant’s procurement officer who was involved in the evaluation of the bids leading to the contract between the plaintiff and the defendant. It was her evidence that after the contract was awarded to the plaintiff, the plaintiff was required to supply samples. The sample failed to meet the specifications required by the defendant. This was communicated to the plaintiff. Later on, the officers were instructed to recall the cancellation. The recall necessitated an addendum to the contract which was not signed. The witness testified that the tarpaulins were budgeted for in the 2018-2019 budget. At the time their Finance Department attempted to source funding for the project, they were told that there was no budget for that because the financial year under which the contract had to be fulfilled had lapsed. It was her testimony that the tarpaulins are a product that can be sourced from any supplier without any difficulty. It was the witness’ evidence that the plaintiff did not deliver in terms of the contract and that a second sample supplied by the plaintiff failed to meet the required standard. She also testified that the plaintiff never advised the defendant where and how it would get the samples as it was not their concern where the samples would be sourced from. She stated that they were not part of the sourcing process at the plaintiff’s company. On the argument that the plaintiff had expended money producing the sample, she commented that producing a sample was a requirement of the contract and the plaintiff never mentioned anything about costs of producing a sample. Had the plaintiff advised the defendant, the parties would have agreed on it. She disputed the costs alleged to have been incurred by the plaintiff in producing the sample, insisting that the parties never agreed on the cost of obtaining a sample. When it was put to her that the defendant had not paid a deposit in terms of the contract, she responded that the plaintiff was required, in terms of the contract, to supply samples for testing. It was only upon the sample being approved that the plaintiff was expected to be paid a deposit and thereafter, supply the tarpaulins. In the plaintiff’s case, two samples failed the test. The second defence witness, Charles Muchechemera, is the defendant’s quality assurance manager. He testified that the plaintiff was required to produce three samples. The first sample was an unproofed fabric of the basic material for the tarpaulins. The second sample was a proofed piece of the tarpaulins. Both the first and second samples were required to measure one metre by one metre. The plaintiff was required to produce test results for these samples from the SAZ. The third sample was supposed to be a complete tarpaulin delivered to the defendant for verification and checking for compliance with specifications. It was his evidence that SAZ would test two samples and GMB would test three, including a complete bitumised tarpaulin. The plaintiff had provided results for the first unproofed fabric. The defendant in turn tested the grammes per square metre and the mass of the unproofed sample. On the proofed sample, the defendant conducted a water resistance test. The witness explained that an unproofed fabric is a plain cloth material and a proofed fabric is a fabric coated with bitumen meant to provide water proofing propensity on the base fabric. He testified that the proofed square metre sample passed the required test. However, the complete tarpaulin, measuring eighteen by nine metres, failed the test because it was leaking. The plaintiff was called to witness the set up before it was dismantled and the plaintiff took the sample back. He assumed that the plaintiff wanted to rectify the defect. Mr Muchechemera stated that the plaintiff did not apply for a retest but there were ongoing discussions to cancel the contract. At this point, the plaintiff argued that the test had not been done properly and there was need for the test to be redone. The defendant’s representative advised them a retest could be done on the original tarpaulin. He clarified that initially the contract was cancelled in October. The plaintiff then brought another sample of a complete tarpaulin after the contract was reinstated. The relevant tests were done but the second sample failed the test. The plaintiff’s representative was called to witness the leaking tarpaulin. He took the sample back and brought another one in November. It was tested and again, that sample was leaking. The representative was called to witness the leaking tarpaulin but he did not turn up. As far as Mr Muchechemera knew, the plaintiff never came back. A complete tarpaulin meeting the specifications had never been submitted. The witness believed that the cancellation was proper because the plaintiff failed to submit a sample that met the requirements. During cross-examination, he conceded that in terms of the contract, the plaintiff was required to submit only one sample to the defendant. He stated that he was not aware that the plaintiff had incurred significant costs in procuring the sample required by GMB. He however admitted that in order to produce a sample, a supplier would incur costs. When the contents of the contract were put to him he admitted that two unproofed samples were supposed to be submitted to SAZ, while one proofed sample was supposed to be submitted to GMB. He could not comment on the unlawfulness of the purported cancellation of the contract, neither could he comment on the issue of a 30% deposit requirement. He insisted that the sample submitted by the plaintiff did not meet the specifications. At the conclusion of evidence, both parties opted to file written closing addresses. The plaintiff would file its closing address on 5 February 2025, while the defendant would file its closing address by 7 February 2025. The plaintiff has since done so but the defendant has not. I am proceeding to make this determination without the benefit of the defendant’s closing address. ISSUE (S) FOR DETERMINATION I have already related to the issues that were referred for trial. I turn now to consider these issues seriatim. WHETHER OR NOT THE CANCELLATION OF CONTRACT NO. AMIS/PRO/37/03/18 ENTERED INTO BETWEEN THE PARTIES IS VALID It is common cause that in cancelling the contract between the parties on 10 April 2019, the defendant stated that it was cancelling the contract in terms of s42 (1) (b) of the PPDPA Act. I had occasion to discuss the validity of the cancellation in the ruling on the application for absolution from the instance. At that stage, I made the following comments: “It is not in dispute that that the cancellation of the contract on 10 April 2019 was in accordance with s 42 (1) (b) of the PPDPA Act. Section 42 (1) (b) provides as follows:- “42 Cancellation of procurement proceedings or rejection of bids (1) If possible a procuring entity shall avoid cancelling procurement proceedings, but may do so where— (a) ………; or (b) insufficient funding is available for the procurement………………..” At the commencement of the trial, I queried the effect of s 42 (1) (b) of the PPDPA Act to the plaintiff’s case. This is because, in accordance with s 42 (6) of the PPDPA Act, no liability is incurred towards action taken in terms of s 42, unless such liability flows from negligence or bad faith. Both parties were agreed that s42 (1) (b) of the PPDPA Act did not apply to the cancellation because procurement proceedings had terminated. I find it disingenuous for Mr. Chikaka to hinge his application on the same section that he conceded was not applicable to the current proceedings. He cannot now seek to argue that the issue boils down to interpretation in the face of his previous concession, moreso considering that he has not explained his sudden volte face, nor why he was abandoning the concession he initially made. In my view, the fact that he took the position that s 42 (1)(b) of the PPDPA Act was not properly applicable in the circumstances, prima facie, it meant that the basis upon which the cancellation of the contract was done fell away and that establishes liability on the part of the defendant.Even if I were to accept the defendant’s unexplained shift, s 42 (1) (b) applies to cancellation of procurement proceedings. As to what constitutes procurement proceedings, the definition section of the PPDPA Act defines them as follows:- “procurement proceedings” or “procurement process” means all stages or any stage of the “procurement of goods, construction works or services conducted by a procuring entity from the pre-bid stage up to and including the award of the contract;” I am not persuaded by the meaning ascribed to ‘procurement proceedings’ by Mr. Chikaka that they refer to the entire process of obtaining the goods, from the invitation to tender through to the award of the contract, including the supply of goods or services. A proper construction of the meaning ascribed to procurement proceedings by the PPDPA Act shows that it refers to all stages of the procurement of goods, construction works or services, but it confines those stages to the pre-bid stage up to, and including, the award of the contract. Section 42 (1)(b) does not extend to the process after a contract is awarded. I still find the observations apt. The fact remains that in cancelling the contract, the plaintiff purported to act in terms of a section which applies to procurement proceedings. In casu, two issues arose. Firstly, Mr Chikaka admitted that the section was not applicable in these circumstances and secondly, procurement proceedings had terminated. Once it is established that procurement proceedings had terminated, s42 (1) (b) of the PPDPA Act could not have been relied on to cancel the contract in this matter. Such a cancellation was invalid. In the celebrated words of Lord Denning in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” I find that the defendant could not validly cancel a contract using a law which applies to procurement proceedings in circumstances where procurement proceedings had terminated. I find that to the extent that the contract was purportedly cancelled in terms of s 42 (1) (b) of the PPDPA Act, such cancellation was void for the sole reason that it was done contrary to the law. WHETHER OR NOT PLAINTIFF IS ENTITLED TO SPECIFIC PERFORMANCE It is a settled position of the law that courts ought to give effect to the contracts of the parties. Our courts have consistently upheld the salutary practice of upholding the freedom to contract lawfully. This notion, which has stood the test of time, is embodied in the principle of sanctity of contracts. A court will not excuse a party from the consequences of a contract simply because the other party finds the terms oppressive, as long as that party entered into the contract freely, voluntarily and with their eyes wide open: See Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S) at 403C-D. The authorities coming out of this jurisdiction, including the case of Grandwell Holdings (Pvt) Ltd v Zimbabwe Mining Development Corporation & Ors 2020 (1) ZLR 108 (S) hold that the remedy of specific performance is aimed at upholding the contract and obtaining the performance of the terms of the contract as agreed. Specific performance is the primary or default remedy for breach of contract. In his text, The Law of Contract in Zimbabwe, 1st Ed (2015) Innocent Maja posits that: ‘Prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger the right of the plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond all doubt.’ In Grandwell Holdings supra, Mathonsi JA is quick to caution that: ‘However, the right to claim specific performance is predicated on the concept that the party claiming it must first show that he or she has performed all his or her obligations under the contract or is ready, willing and able to perform his or her side of the bargain. Even then, the court has a discretion, which should be exercised judicially, to grant or refuse a decree of specific performance. It follows therefore that the court’s discretion should not be exercised arbitrarily or capriciously. See Minister of Public Construction & National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S), where at 318 G, this Court stated: “The law is clear. This is a remedy to which a party is entitled as of right. It cannot be withheld arbitrarily or capriciously.” In Manengureni v Kakomo & Ors 2020 (2) ZLR 269 (H) at p275F-G Dube J (as she then was) remarks that ‘[24] Specific performance is an order of court requiring that a contract be performed on the basis of its terms. It is a remedy ordinarily afforded to an innocent party in the event of breach by the other party resulting from his failure to adhere to terms of a contract. Generally, the remedy of specific performance is available to the innocent party. Wessels, The Law of Contract in South Africa vol 1 para 3135 states: “The court will not decree specific performance where the plaintiff has broken the contract or made a material default in the performance on his part (Lawson, s 472, p522). A party is not entitled to a specific performance where he has failed to show that he has performed in terms of the contract. See also Wilbert v Steenkemp 1917 AD 493@ p499.” An order for specific performance enables the innocent party to compel performance of the terms of the contract upon breach. There must be a binding contract in existence and a breach of the terms of the contract. Courts will not order specific performance where there is substantial and material breach of the contract by the party seeking enforcement of the contract.’ With this in mind, I turn to consider the specific terms of the contract in casu. Clause 1.3.7. of the contract entered into between the parties provides; ‘1.3.7. A sample of one complete tarpaulin shall be delivered to GMB for verification and checking for conformance to specification before delivery of the order.’ It is common cause that in compliance with the terms of the contract, the plaintiff supplied a sample of one complete tarpaulin. It is also common cause that the tarpaulin failed the water resistance test. The evidence on record shows that the plaintiff did not subsequently supply a sample that matched the defendant’s specifications. In my view, once the plaintiff accepts that it did not supply a sample matching the defendant’s specifications, it cannot argue that it performed all its obligations in terms of the contract. The plaintiff failed to meet the expected yardstick and cannot demand specific performance where it has failed to supply a sample which met the defendant’s specifications. I am alive to the position of the law as enunciated in Grandwell Holdings supra that specific performance can also be ordered where the plaintiff is ready, willing and able to perform his or her side of the bargain. In this case, the plaintiff’s representative testified that it is still possible to deliver the tarpaulins but he finds it difficult because of the current relationship between the plaintiff and the defendant. He further stated that he was not aware of the current prices now and the agreement may not be on the same basis that the parties initially entered into the contract.There is probably merit in the plaintiff’s argument. It occurs to me that the contract which was entered into in 2018 has been exposed to two phenomenal currency changes in Zimbabwe, one introduced by Statutory Instrument 33 of 2019, which placed local United States dollars denominated contractual obligations at parity or at a one-to-one rate with RTGS dollars. The second one was a further conversion of RTGS/ZWL to the Zimbabwe Gold (ZiG) currency in 2024. It crosses my mind that the value of the contract could have been severely affected as a result. The case of Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd 2009 (1) ZLR 326 (S) is authority for the proposition that even where a contract is found to not have been unlawfully terminated, there are instances where an order for specific performance would not be appropriate. I have already found that by dint of its failure to perform its side of the bargain, the plaintiff cannot be entitled to specific performance. I also find that the court cannot order specific performance in the hope that the plaintiff will perform its side of the bargain in circumstances where the plaintiff has been clear that its relationship with the defendant is now sour and that their challenge as a supplier is that they are not aware of the current prices, as well as the insinuation that the contract may not be on the same basis that the parties initially got into the contract. The latter suggestion would be, in my view, tantamount to the court rewriting the contract for the parties. I am inclined therefore to follow the reasoning of the court in Zimbabwe Express Services supra and not order specific performance in the circumstances. I conclude, therefore, that this would not be an appropriate case to exercise my discretion and order specific performance. WHETHER OR NOT PLAINTIFF IS ENTITLED TO DAMAGES AND LOSS OF PROFIT BY THE DEFENDANT. IF SO, WHAT AMOUNT IS IT ENTITLED TO? Much effort has been expended on the defendant’s failure to dispute the quantum of damages claimed by the plaintiff. I have alluded to the fact that the plaintiff seeks, specific performance, or if specific performance is no longer possible, damages in the sum of three hundred and fifty-five thousand United States dollars (USD 355 000) being the capital outlay incurred by the plaintiff towards manufacturing the contracted bitumised tarpaulins; seven hundred and eighty-five thousand Rand (R785 000) being the deposit paid by the plaintiff for the sample cloth synthesis; and nine hundred and five thousand six hundred and twenty-five United States dollars (USD 905 625) being the net profit that the plaintiff would have earned had the contract been performed. The plaintiff argues that because the defendant did not lead any evidence to refute the claim for damages, then the court ought to award those damages. Regrettably, it is not as simple as that. In terms of the rules of this Court, even in circumstances where a defendant is either in default of appearance to defend or plea, in actions where the claim is for damages, adduction of evidence as to quantum is a peremptory requirement1. The award of damages is not dependent on the defendant’s rebuttal of a claim, but proof of such. In the case of Jitesh v Skimmer HB176-23 Dube-Banda J was seized with an unopposed application for contractual damages arising out of a breach of contract. The learned Judge observed that:- ‘The plaintiff must prove that he suffered damage as a result of the defendant's breach. The primary purpose of contractual damages is the compensation for the non-fulfilment of its terms. It is a sum of money paid to the innocent party in compensation for a breach of contract, and is meant to place the plaintiff in the position he would have been in if the contract had been performed. In Silonda v Nkomo (6 of 2022) [2022] ZWSC 6 (25 January 2022) the court said: “There is no magic attached to restitutio in integrum. Regarding contractual damages, it is a term of art, which denotes the unwinding or unravelling, physically or by payment of a monetary equivalent, of what has been done back to its original or pre-contractual position. See Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd 1999 (2) SA 719 (A) at 732B and Sackstein NO v Proudfoot SA (Pty) Ltd 2006 (6) 358 (SCA) para (11) and Mackay v Fey NO 2006 (3) SA 182 (SCA) at para (10), Jacobs v United Building Society 1981 (4) S.A.37 at 39C-E and Du Plessis p 70 para 4.4.2.2.” In Wynina (Pvt) Ltd v MBCA Bank Limited 2014 (1) ZLR 415 (S) at 425H-426B the Supreme Court, while accepting the position that a plaintiff who sues for damages is required to prove his damages, pointed out that the proof of damages is not a strict rule. However, what is required of a plaintiff is to place before the court all the evidence that is reasonably available to him. The court further stated that before this principle can come into effect, it must be established that the plaintiff has suffered some damages and all that has to be established is the quantum of those damages. In Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (H) the court quoted with approval the remarks in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652(C) at 655H-656F to the effect that: ‘Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss…’ In casu, the plaintiff has only led oral evidence of the damages it allegedly suffered in securing the sample it submitted to the defendant. In fact, it is on the mere say so by the plaintiff’s representative that certain costs were incurred that the plaintiff wants this court to award damages. I am constrained to adopt that route for the following reasons. Firstly, the plaintiff submitted that it secured the sample from India and the proofing was done in South Africa. Surely, there must be a paper trail to substantiate the plaintiff’s claim with exact mathematical precision. Yet, nothing has been placed before the court to prove those transactions. Curiously, not even the companies with whom the plaintiff transacted were identified. To date, the identification of those companies is shrouded in mystery. Secondly, the plaintiff’s representative admitted during cross-examination that he had some electronic mail messages to confirm the transactions. Strangely, given the crucial nature of such transactions to prove the loss suffered by the plaintiff, the plaintiff did not see it prudent to place the little evidence it may have to prove the same. It is anybody’s guess whether or not the transactions even took place in the first instance. The defendant is justified in arguing that the figures are thumb suck. Without producing any ounce of evidence before the court, the plaintiff is inviting this court to make bricks without straw. It is an invitation that I have to decline in light of the established jurisprudence of this jurisdiction that damages must be proved. The court cannot award damages on the mere say so of the plaintiff. The plaintiff has chosen not to produce the evidence available to it to prove the damages. The plaintiff has therefore failed to prove that it is entitled to monetary damages to the extent it alleges. DISPOSITION For the reasons stated above, I am of the view that the plaintiff’s claim must fail. On the issue of costs, it is trite that costs follow the outcome. I have no reason to determine otherwise. ORDER In the result, it is ordered that: The plaintiff’s claim be and is hereby dismissed. The plaintiff shall pay the defendant’s costs. Mushure J: .......................................................................... Antonio & Dzvetero, plaintiff’s legal practitioners Mushoriwa Moyo, defendant’s legal practitioners 1 See Rule 25 of the High Court Rules, 2021 7 HH 314 - 25 HCH 2399/22 7 HH 314 - 25 HCH 2399/22 ADHERECHEM CHEMCALS (PRIVATE) LIMITED versus GRAIN MARKETING BOARD HIGH COURT OF ZIMBABWE MUSHURE J HARARE, 6 November, 2 December 2024, 24 January 2025 & 21 May 2025 Civil trial T. S. T. Dzvetero with P. Patisani for the plaintiff I. Chikaka for the defendant MUSHURE J: INTRODUCTION The plaintiff is a company incorporated in terms of the laws of Zimbabwe. The defendant is a body corporate established in terms of s3 of the Grain Marketing Act [Chapter 18:14]. The material facts of this matter are largely common cause and are not seriously disputed. I may summarise them as follows: The plaintiff and the defendant entered into an agreement in terms of which the defendant was to purchase from the plaintiff one thousand bitumised tarpaulins to cover its grain at a unit price of USD 3 622.50 (three thousand six hundred and twenty two United States dollars fifty cents). The total contract value was agreed to be three million six-hundred and twenty-two thousand five hundred United States dollars (USD3 622 500.00). The agreement was reduced to writing and signed by both parties in April 2018 under contract number GMB/PROC/37/03/18. It was a material term of the agreement that the bitumised tarpaulins conform to the Zimbabwe Standard Specification for Tarpaulins. They were to be eighteen metres long and nine metres wide. The tarpaulins were to be made of plain woven cotton fabric, and to have tabs and eyelets. They were required to be bitumen proofed and to be water resistant in accordance with the Standards Association of Zimbabwe (‘SAZ’) standards. It was also a material term of the agreement that the plaintiff would submit the samples of proofed and unproofed fabric for testing by SAZ. The test results were to be submitted to the defendant. A sample of one complete tarpaulin was to be delivered to the defendant for verification and conformance check before delivery of the full order. In accordance with the contract, the plaintiff duly submitted samples for testing. The samples failed a leaking test. The defendant considered that such a fault would cause damage to grain on its storage platforms and resolved to cancel the contract. The cancellation was communicated to the plaintiff on 1 October 2018. Several engagements for the sample to be retested between the plaintiff’s and the defendant’s representatives ensued. The plaintiff did not get joy from these engagements and on 5 October 2018, it appealed to the defendant’s Chief Executive Officer (‘CEO’) for his intervention. On 22 October 2018, the defendant reinstated the contract subject to the conditions that the plaintiff would meet all testing costs for all the bitumised tarpaulins to be supplied, and that a revised delivery schedule and a sample for testing would be submitted. An addendum to the contract incorporating the revised delivery schedule was done. This addendum was however not signed by the defendant. On 10 April 2019, purportedly acting in terms of s42 (1)(b) of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] (‘the PPDPA Act’), the defendant cancelled the contract. The cancellation was attributed to budgetary constraints. This was confirmed by the then Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement, in response to the plaintiff’s letter challenging the cancellation on that basis. Following the cancellation, the plaintiff instituted these action proceedings against the defendant seeking an order declaring the cancellation of the contract null and void. The plaintiff seeks specific performance, or if specific performance is no longer possible, damages in the sum of three hundred and fifty-five thousand United States dollars being the capital outlay incurred by the plaintiff towards manufacturing the contracted bitumised tarpaulins; seven hundred and eighty-five thousand Rand (R785 000) being the deposit paid by the plaintiff for the sample cloth synthesis; and nine hundred and five thousand six hundred and twenty-five United States dollars (USD 905 625) being the net profit that the plaintiff would have earned had the contract been performed. The plaintiff also seeks interest on the claimed amounts at the prescribed rate from the date of issue of summons to the date of full payment, both dates included. Finally, the plaintiff seeks costs of suit on an attorney to client scale. After the plaintiff instituted summons, the defendant entered appearance to defend. In its plea, the defendant denies that the contract was reinstated because it had been terminated. The purported addendum was void because there ceased to be a contract and there was need to go back to tender by operation of the law. The defendant argues that everything that followed the initial termination of the contract was of no effect, and that the plaintiff had breached the contract by supplying defective materials in the first instance leading to the first cancellation. The defendant contends that the damages alleged were thumb sucked and the plaintiff is supposed to prove each and every amount claimed. At the conclusion of a pre-trial conference before a Judge, it was resolved that the matter be referred to trial on the following issues:- Whether or not the cancellation of contract no. Amis/PRO/37/03/18 entered into between the parties is valid. Whether or not Plaintiff is entitled to specific performance. Whether or not Plaintiff is entitled to damages and loss of profit by the Defendant. If so, what amount is it entitled to? PROCEEDINGS BEFORE THIS COURT At the trial of the matter, the plaintiff gave evidence through its managing director, Nkosana Khumalo. His evidence was to a large extent a narration of the facts which are common cause that I have already referred to above. He testified that the plaintiff responded to a tender flighted by the defendant in January/ February of 2018 for the supply of bitumised tarpaulins. The tender was valued at US$3 million. He further testified that the plaintiff won the tender and they entered into a contract. The plaintiff started working on supplying a sample. The plaintiff had to purchase a minimum order quantity as set by the supplier of the materials. A sample was presented to SAZ and a report produced. It was his evidence that the plaintiff was not involved in the testing of the sample at the defendant’s premises. The plaintiff’s representatives requested that the test be done in their presence. This was not done but the defendant’s CEO later intervened and it was agreed that a retest would be done. They were promised an invitation to the process but this was never done. He reasoned that the conditions for the first test were not very ideal because the tent was placed against treated gum poles and the extent of the tent was such that the defendant’s officials would step on it while walking. He stated that he found it difficult to perform the contract now because of the relationship and the contract prices are likely to have gone up by now. On being cross-examined, he admitted that the plaintiff had not placed any evidence before the court to prove the costs it allegedly incurred to source the sample. He also admitted that the plaintiff had not supplied the bitumised tarpaulins. He accepted that it was a specific term of the contract that the defendant would conduct the test of the sample and it was not a requirement that the test would be conducted in the plaintiff’s presence. He also accepted that the defendant had communicated the fact that the sample had failed a water resistance test. He said when the plaintiff did its own test the defendant refused to come and witness the test. During re-examination, it emerged that while it was resolved that the test be redone, the defendant’s quality assurance manager had refused to conduct the test on the basis that the sample had gone in and out of the defendant’s premises. With this sole witness’ evidence, the plaintiff closed its case. The defendant mounted an application for absolution from the instance, which I dismissed for reasons on record. An intention to appeal against the dismissal of the application followed but was not pursued after I also dismissed an application for leave to appeal to the Supreme Court. The defendant’s case then commenced. Two witnesses took to the witness stand on behalf of the defendant. The first witness, Sandra Alumenda, is the defendant’s procurement officer who was involved in the evaluation of the bids leading to the contract between the plaintiff and the defendant. It was her evidence that after the contract was awarded to the plaintiff, the plaintiff was required to supply samples. The sample failed to meet the specifications required by the defendant. This was communicated to the plaintiff. Later on, the officers were instructed to recall the cancellation. The recall necessitated an addendum to the contract which was not signed. The witness testified that the tarpaulins were budgeted for in the 2018-2019 budget. At the time their Finance Department attempted to source funding for the project, they were told that there was no budget for that because the financial year under which the contract had to be fulfilled had lapsed. It was her testimony that the tarpaulins are a product that can be sourced from any supplier without any difficulty. It was the witness’ evidence that the plaintiff did not deliver in terms of the contract and that a second sample supplied by the plaintiff failed to meet the required standard. She also testified that the plaintiff never advised the defendant where and how it would get the samples as it was not their concern where the samples would be sourced from. She stated that they were not part of the sourcing process at the plaintiff’s company. On the argument that the plaintiff had expended money producing the sample, she commented that producing a sample was a requirement of the contract and the plaintiff never mentioned anything about costs of producing a sample. Had the plaintiff advised the defendant, the parties would have agreed on it. She disputed the costs alleged to have been incurred by the plaintiff in producing the sample, insisting that the parties never agreed on the cost of obtaining a sample. When it was put to her that the defendant had not paid a deposit in terms of the contract, she responded that the plaintiff was required, in terms of the contract, to supply samples for testing. It was only upon the sample being approved that the plaintiff was expected to be paid a deposit and thereafter, supply the tarpaulins. In the plaintiff’s case, two samples failed the test. The second defence witness, Charles Muchechemera, is the defendant’s quality assurance manager. He testified that the plaintiff was required to produce three samples. The first sample was an unproofed fabric of the basic material for the tarpaulins. The second sample was a proofed piece of the tarpaulins. Both the first and second samples were required to measure one metre by one metre. The plaintiff was required to produce test results for these samples from the SAZ. The third sample was supposed to be a complete tarpaulin delivered to the defendant for verification and checking for compliance with specifications. It was his evidence that SAZ would test two samples and GMB would test three, including a complete bitumised tarpaulin. The plaintiff had provided results for the first unproofed fabric. The defendant in turn tested the grammes per square metre and the mass of the unproofed sample. On the proofed sample, the defendant conducted a water resistance test. The witness explained that an unproofed fabric is a plain cloth material and a proofed fabric is a fabric coated with bitumen meant to provide water proofing propensity on the base fabric. He testified that the proofed square metre sample passed the required test. However, the complete tarpaulin, measuring eighteen by nine metres, failed the test because it was leaking. The plaintiff was called to witness the set up before it was dismantled and the plaintiff took the sample back. He assumed that the plaintiff wanted to rectify the defect. Mr Muchechemera stated that the plaintiff did not apply for a retest but there were ongoing discussions to cancel the contract. At this point, the plaintiff argued that the test had not been done properly and there was need for the test to be redone. The defendant’s representative advised them a retest could be done on the original tarpaulin. He clarified that initially the contract was cancelled in October. The plaintiff then brought another sample of a complete tarpaulin after the contract was reinstated. The relevant tests were done but the second sample failed the test. The plaintiff’s representative was called to witness the leaking tarpaulin. He took the sample back and brought another one in November. It was tested and again, that sample was leaking. The representative was called to witness the leaking tarpaulin but he did not turn up. As far as Mr Muchechemera knew, the plaintiff never came back. A complete tarpaulin meeting the specifications had never been submitted. The witness believed that the cancellation was proper because the plaintiff failed to submit a sample that met the requirements. During cross-examination, he conceded that in terms of the contract, the plaintiff was required to submit only one sample to the defendant. He stated that he was not aware that the plaintiff had incurred significant costs in procuring the sample required by GMB. He however admitted that in order to produce a sample, a supplier would incur costs. When the contents of the contract were put to him he admitted that two unproofed samples were supposed to be submitted to SAZ, while one proofed sample was supposed to be submitted to GMB. He could not comment on the unlawfulness of the purported cancellation of the contract, neither could he comment on the issue of a 30% deposit requirement. He insisted that the sample submitted by the plaintiff did not meet the specifications. At the conclusion of evidence, both parties opted to file written closing addresses. The plaintiff would file its closing address on 5 February 2025, while the defendant would file its closing address by 7 February 2025. The plaintiff has since done so but the defendant has not. I am proceeding to make this determination without the benefit of the defendant’s closing address. ISSUE (S) FOR DETERMINATION I have already related to the issues that were referred for trial. I turn now to consider these issues seriatim. WHETHER OR NOT THE CANCELLATION OF CONTRACT NO. AMIS/PRO/37/03/18 ENTERED INTO BETWEEN THE PARTIES IS VALID It is common cause that in cancelling the contract between the parties on 10 April 2019, the defendant stated that it was cancelling the contract in terms of s42 (1) (b) of the PPDPA Act. I had occasion to discuss the validity of the cancellation in the ruling on the application for absolution from the instance. At that stage, I made the following comments: “It is not in dispute that that the cancellation of the contract on 10 April 2019 was in accordance with s 42 (1) (b) of the PPDPA Act. Section 42 (1) (b) provides as follows:- “42 Cancellation of procurement proceedings or rejection of bids (1) If possible a procuring entity shall avoid cancelling procurement proceedings, but may do so where— (a) ………; or (b) insufficient funding is available for the procurement………………..” At the commencement of the trial, I queried the effect of s 42 (1) (b) of the PPDPA Act to the plaintiff’s case. This is because, in accordance with s 42 (6) of the PPDPA Act, no liability is incurred towards action taken in terms of s 42, unless such liability flows from negligence or bad faith. Both parties were agreed that s42 (1) (b) of the PPDPA Act did not apply to the cancellation because procurement proceedings had terminated. I find it disingenuous for Mr. Chikaka to hinge his application on the same section that he conceded was not applicable to the current proceedings. He cannot now seek to argue that the issue boils down to interpretation in the face of his previous concession, moreso considering that he has not explained his sudden volte face, nor why he was abandoning the concession he initially made. In my view, the fact that he took the position that s 42 (1)(b) of the PPDPA Act was not properly applicable in the circumstances, prima facie, it meant that the basis upon which the cancellation of the contract was done fell away and that establishes liability on the part of the defendant. Even if I were to accept the defendant’s unexplained shift, s 42 (1) (b) applies to cancellation of procurement proceedings. As to what constitutes procurement proceedings, the definition section of the PPDPA Act defines them as follows:- “procurement proceedings” or “procurement process” means all stages or any stage of the “procurement of goods, construction works or services conducted by a procuring entity from the pre-bid stage up to and including the award of the contract;” I am not persuaded by the meaning ascribed to ‘procurement proceedings’ by Mr. Chikaka that they refer to the entire process of obtaining the goods, from the invitation to tender through to the award of the contract, including the supply of goods or services. A proper construction of the meaning ascribed to procurement proceedings by the PPDPA Act shows that it refers to all stages of the procurement of goods, construction works or services, but it confines those stages to the pre-bid stage up to, and including, the award of the contract. Section 42 (1)(b) does not extend to the process after a contract is awarded. I still find the observations apt. The fact remains that in cancelling the contract, the plaintiff purported to act in terms of a section which applies to procurement proceedings. In casu, two issues arose. Firstly, Mr Chikaka admitted that the section was not applicable in these circumstances and secondly, procurement proceedings had terminated. Once it is established that procurement proceedings had terminated, s42 (1) (b) of the PPDPA Act could not have been relied on to cancel the contract in this matter. Such a cancellation was invalid. In the celebrated words of Lord Denning in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” I find that the defendant could not validly cancel a contract using a law which applies to procurement proceedings in circumstances where procurement proceedings had terminated. I find that to the extent that the contract was purportedly cancelled in terms of s 42 (1) (b) of the PPDPA Act, such cancellation was void for the sole reason that it was done contrary to the law. WHETHER OR NOT PLAINTIFF IS ENTITLED TO SPECIFIC PERFORMANCE It is a settled position of the law that courts ought to give effect to the contracts of the parties. Our courts have consistently upheld the salutary practice of upholding the freedom to contract lawfully. This notion, which has stood the test of time, is embodied in the principle of sanctity of contracts. A court will not excuse a party from the consequences of a contract simply because the other party finds the terms oppressive, as long as that party entered into the contract freely, voluntarily and with their eyes wide open: See Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S) at 403C-D. The authorities coming out of this jurisdiction, including the case of Grandwell Holdings (Pvt) Ltd v Zimbabwe Mining Development Corporation & Ors 2020 (1) ZLR 108 (S) hold that the remedy of specific performance is aimed at upholding the contract and obtaining the performance of the terms of the contract as agreed. Specific performance is the primary or default remedy for breach of contract. In his text, The Law of Contract in Zimbabwe, 1st Ed (2015) Innocent Maja posits that: ‘Prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger the right of the plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond all doubt.’ In Grandwell Holdings supra, Mathonsi JA is quick to caution that: ‘However, the right to claim specific performance is predicated on the concept that the party claiming it must first show that he or she has performed all his or her obligations under the contract or is ready, willing and able to perform his or her side of the bargain. Even then, the court has a discretion, which should be exercised judicially, to grant or refuse a decree of specific performance. It follows therefore that the court’s discretion should not be exercised arbitrarily or capriciously. See Minister of Public Construction & National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S), where at 318 G, this Court stated: “The law is clear. This is a remedy to which a party is entitled as of right. It cannot be withheld arbitrarily or capriciously.” In Manengureni v Kakomo & Ors 2020 (2) ZLR 269 (H) at p275F-G Dube J (as she then was) remarks that ‘[24] Specific performance is an order of court requiring that a contract be performed on the basis of its terms. It is a remedy ordinarily afforded to an innocent party in the event of breach by the other party resulting from his failure to adhere to terms of a contract. Generally, the remedy of specific performance is available to the innocent party. Wessels, The Law of Contract in South Africa vol 1 para 3135 states: “The court will not decree specific performance where the plaintiff has broken the contract or made a material default in the performance on his part (Lawson, s 472, p522). A party is not entitled to a specific performance where he has failed to show that he has performed in terms of the contract. See also Wilbert v Steenkemp 1917 AD 493@ p499.” An order for specific performance enables the innocent party to compel performance of the terms of the contract upon breach. There must be a binding contract in existence and a breach of the terms of the contract. Courts will not order specific performance where there is substantial and material breach of the contract by the party seeking enforcement of the contract.’ With this in mind, I turn to consider the specific terms of the contract in casu. Clause 1.3.7. of the contract entered into between the parties provides; ‘1.3.7. A sample of one complete tarpaulin shall be delivered to GMB for verification and checking for conformance to specification before delivery of the order.’ It is common cause that in compliance with the terms of the contract, the plaintiff supplied a sample of one complete tarpaulin. It is also common cause that the tarpaulin failed the water resistance test. The evidence on record shows that the plaintiff did not subsequently supply a sample that matched the defendant’s specifications. In my view, once the plaintiff accepts that it did not supply a sample matching the defendant’s specifications, it cannot argue that it performed all its obligations in terms of the contract. The plaintiff failed to meet the expected yardstick and cannot demand specific performance where it has failed to supply a sample which met the defendant’s specifications. I am alive to the position of the law as enunciated in Grandwell Holdings supra that specific performance can also be ordered where the plaintiff is ready, willing and able to perform his or her side of the bargain. In this case, the plaintiff’s representative testified that it is still possible to deliver the tarpaulins but he finds it difficult because of the current relationship between the plaintiff and the defendant. He further stated that he was not aware of the current prices now and the agreement may not be on the same basis that the parties initially entered into the contract. There is probably merit in the plaintiff’s argument. It occurs to me that the contract which was entered into in 2018 has been exposed to two phenomenal currency changes in Zimbabwe, one introduced by Statutory Instrument 33 of 2019, which placed local United States dollars denominated contractual obligations at parity or at a one-to-one rate with RTGS dollars. The second one was a further conversion of RTGS/ZWL to the Zimbabwe Gold (ZiG) currency in 2024. It crosses my mind that the value of the contract could have been severely affected as a result. The case of Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd 2009 (1) ZLR 326 (S) is authority for the proposition that even where a contract is found to not have been unlawfully terminated, there are instances where an order for specific performance would not be appropriate. I have already found that by dint of its failure to perform its side of the bargain, the plaintiff cannot be entitled to specific performance. I also find that the court cannot order specific performance in the hope that the plaintiff will perform its side of the bargain in circumstances where the plaintiff has been clear that its relationship with the defendant is now sour and that their challenge as a supplier is that they are not aware of the current prices, as well as the insinuation that the contract may not be on the same basis that the parties initially got into the contract. The latter suggestion would be, in my view, tantamount to the court rewriting the contract for the parties. I am inclined therefore to follow the reasoning of the court in Zimbabwe Express Services supra and not order specific performance in the circumstances. I conclude, therefore, that this would not be an appropriate case to exercise my discretion and order specific performance. WHETHER OR NOT PLAINTIFF IS ENTITLED TO DAMAGES AND LOSS OF PROFIT BY THE DEFENDANT. IF SO, WHAT AMOUNT IS IT ENTITLED TO? Much effort has been expended on the defendant’s failure to dispute the quantum of damages claimed by the plaintiff. I have alluded to the fact that the plaintiff seeks, specific performance, or if specific performance is no longer possible, damages in the sum of three hundred and fifty-five thousand United States dollars (USD 355 000) being the capital outlay incurred by the plaintiff towards manufacturing the contracted bitumised tarpaulins; seven hundred and eighty-five thousand Rand (R785 000) being the deposit paid by the plaintiff for the sample cloth synthesis; and nine hundred and five thousand six hundred and twenty-five United States dollars (USD 905 625) being the net profit that the plaintiff would have earned had the contract been performed. The plaintiff argues that because the defendant did not lead any evidence to refute the claim for damages, then the court ought to award those damages. Regrettably, it is not as simple as that. In terms of the rules of this Court, even in circumstances where a defendant is either in default of appearance to defend or plea, in actions where the claim is for damages, adduction of evidence as to quantum is a peremptory requirement1. The award of damages is not dependent on the defendant’s rebuttal of a claim, but proof of such. In the case of Jitesh v Skimmer HB176-23 Dube-Banda J was seized with an unopposed application for contractual damages arising out of a breach of contract. The learned Judge observed that:- ‘The plaintiff must prove that he suffered damage as a result of the defendant's breach. The primary purpose of contractual damages is the compensation for the non-fulfilment of its terms. It is a sum of money paid to the innocent party in compensation for a breach of contract, and is meant to place the plaintiff in the position he would have been in if the contract had been performed. In Silonda v Nkomo (6 of 2022) [2022] ZWSC 6 (25 January 2022) the court said: “There is no magic attached to restitutio in integrum. Regarding contractual damages, it is a term of art, which denotes the unwinding or unravelling, physically or by payment of a monetary equivalent, of what has been done back to its original or pre-contractual position. See Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd 1999 (2) SA 719 (A) at 732B and Sackstein NO v Proudfoot SA (Pty) Ltd 2006 (6) 358 (SCA) para (11) and Mackay v Fey NO 2006 (3) SA 182 (SCA) at para (10), Jacobs v United Building Society 1981 (4) S.A.37 at 39C-E and Du Plessis p 70 para 4.4.2.2.” In Wynina (Pvt) Ltd v MBCA Bank Limited 2014 (1) ZLR 415 (S) at 425H-426B the Supreme Court, while accepting the position that a plaintiff who sues for damages is required to prove his damages, pointed out that the proof of damages is not a strict rule. However, what is required of a plaintiff is to place before the court all the evidence that is reasonably available to him. The court further stated that before this principle can come into effect, it must be established that the plaintiff has suffered some damages and all that has to be established is the quantum of those damages. In Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (H) the court quoted with approval the remarks in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652(C) at 655H-656F to the effect that: ‘Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss…’ In casu, the plaintiff has only led oral evidence of the damages it allegedly suffered in securing the sample it submitted to the defendant. In fact, it is on the mere say so by the plaintiff’s representative that certain costs were incurred that the plaintiff wants this court to award damages. I am constrained to adopt that route for the following reasons. Firstly, the plaintiff submitted that it secured the sample from India and the proofing was done in South Africa. Surely, there must be a paper trail to substantiate the plaintiff’s claim with exact mathematical precision. Yet, nothing has been placed before the court to prove those transactions. Curiously, not even the companies with whom the plaintiff transacted were identified. To date, the identification of those companies is shrouded in mystery. Secondly, the plaintiff’s representative admitted during cross-examination that he had some electronic mail messages to confirm the transactions. Strangely, given the crucial nature of such transactions to prove the loss suffered by the plaintiff, the plaintiff did not see it prudent to place the little evidence it may have to prove the same. It is anybody’s guess whether or not the transactions even took place in the first instance. The defendant is justified in arguing that the figures are thumb suck. Without producing any ounce of evidence before the court, the plaintiff is inviting this court to make bricks without straw. It is an invitation that I have to decline in light of the established jurisprudence of this jurisdiction that damages must be proved. The court cannot award damages on the mere say so of the plaintiff. The plaintiff has chosen not to produce the evidence available to it to prove the damages. The plaintiff has therefore failed to prove that it is entitled to monetary damages to the extent it alleges. DISPOSITION For the reasons stated above, I am of the view that the plaintiff’s claim must fail. On the issue of costs, it is trite that costs follow the outcome. I have no reason to determine otherwise. ORDER In the result, it is ordered that: The plaintiff’s claim be and is hereby dismissed. The plaintiff shall pay the defendant’s costs. Mushure J: .......................................................................... Antonio & Dzvetero, plaintiff’s legal practitioners Mushoriwa Moyo, defendant’s legal practitioners 1 See Rule 25 of the High Court Rules, 2021 1 See Rule 25 of the High Court Rules, 2021