CBZ AGRO YIELD (PVT) LTD v CHINGOMBE (251 of 2025) [2025] ZWHHC 251 (10 April 2025)

HH 251-25 HCHC 559-24 CBZ AGRO YIELD (PVT) LTD Versus RICHARD CHINGOMBE HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHIRAWU-MUGOMBA J Harare, 24, 26 March, 7, 8, 9 and 10 April 2025 M. NGWENYA, for the plaintiff T. G. MBOKO, for the defendant TRIAL CAUSE CHIRAWU MUGOMBA: The plaintiff issued summons against the defendant claiming a total sum of USD 332,822,17 and ancillary relief. In amplifying its claim in the declaration, the plaintiff stated that the, the parties entered into a contract farming agreement whose salient terms were as follows, that the plaintiff would facilitate the provision of 2022/2023 summer maize inputs to the defendant through paying input suppliers on behalf of the defendant for the purposes of enabling him to produce maize ; that the plaintiff would advise its suppliers of the various inputs required by the defendant and he would make his own arrangements for the collection of the inputs and the Defendant would be responsible for the payment for such delivery to his farm; that the defendant would exclusively grow the crop for the plaintiff in accordance with the inputs for the hectarage allocated; that the defendant would not produce and sell the crop for any person or entity other than the plaintiff, nor deal with the crop in any manner other than prescribed in the agreement until repayment of all sums advanced for the inputs together with fees and costs applicable, save with the Plaintiff’s consent; that the defendant would deliver the crop to plaintiff or the designated off takers of the plaintiff in terms of the agreement and to make such delivery in the plaintiff’s name; that HH 251-25 HCHC 559-24 the defendant would be liable to the Plaintiff for United States dollar value of the allocated inputs together with a 14% interest plus 0.5% arrangement fee, 1% distribution charge and 1% insurance and any other costs and charges incurred by the 30th September; that effective 1st October 2023 summer maize crop, any amounts outstanding from the agreement shall become due and payable and interest shall accrue at a penalty rate calculated daily on any daily balance and capitalised monthly until the date of payment in full and the said interest rate would change from time to time in line with money market conditions. Further that the plaintiff duly complied and supplied inputs in the sum of US$261,417.20. This sum had since accrued interest and charges thus bringing it to the amount claimed. At the time of issuance of summons, the defendant had not paid anything to reduce his indebtedness. However, a sum of USD20,000 had since been paid in August 2024 thus reducing the claim by that amount. In his plea, the defendant averred that the plaintiff had breached the contract by failing to supply chemicals and inputs on time. As a result of this breach, there was massive crop failure resulting in a yield of 9 tonnes against an expected 200 tonnes. The defendant had as a result filed his own claim against the plaintiff in the main division of the High Court. At a case management meeting, the defendant was directed to withdraw that claim and to file it in the Commercial Division as a claim -in-reconvention. This was duly done. The defendant’s counterclaim was an extension of his plea wherein he pleaded that the plaintiff had breached the contract. The parties will remain referred to as in the main claim for the sake of convenience. A. The defendant crystallised the breach as follows. That despite signing of the contract on the 28th of December 2022 when the farming season was already underway, the plaintiff fundamentally breached the contract in the following ways: (i). It failed to supply nitrogen fertilizer within the scientifically established critical window of 20-30 days after planting, which agricultural science confirms is essential for maize crop development and yield potential. (ii). The delayed delivery of top-dressing fertilizer until after 35 days made crop failure inevitable, as this missed the crucial V6-V8 growth stages when approximately 70% of the maize crop's nitrogen uptake occurs. (iii). This delay constituted a fundamental breach of both the contract and established agricultural practice, as the timing of nitrogen application is scientifically proven to be critical for maize yield potential. (iv) Plaintiff failed to therefore "facilitate the HH 251-25 HCHC 559-24 provision of summer planting season" in terms of the contract, an (v).plaintiff failed to secure and guarantee supply of the inputs within the scientifically required timeframes. As a result, he sought the following, (i) declaration that the plaintiff breached the contract between the parties by failing to supply the inputs as agreed. (ii). an order that the plaintiff be ordered to pay damages in the sum of USD$393 000.00 (iii). an order that the addendum signed by the parties on the 6th of February 2023 be declared null and void, and (iv) that the plaintiff be ordered to pay the cost of suit on a client attorney scale. False hope was created after case management sessions that the matter would be settled. All attempts came to nought thus necessitating a full trial. The issues identified by the parties were as follows, 1. Whether or not the Defendant is liable to pay the Plaintiff of the sum of US$312,822.71 plus interest thereon at the rate of 15% per annum calculated from the 1st October 2023 to the date of payment in full and, 2. Whether or not Plaintiff is liable to pay the Defendant the sum of US$393,000.00 as damages. After hearing the oral evidence led as supported by the pleadings and discovered documents, in my view, the issues arising are as follows:- a. Did the defendant breach the contract and if so, what is the appropriate remedy? b. Did the plaintiff breach the contract and if so what are the remedies? I have located the dispute in breach of contract because it is common cause that the parties did enter into a written contract in December 2022. I however did not read the plaintiff’s plea to the claim-in-reconvention as being located in reciprocal breach. However, in my view, the main and claim-in-reconvention are intertwined. The plaintiff led evidence through Wisdom Mukaro, hereinafter , “Mukaro” who is the recoveries and collections manager. The defendant led evidence on his own behalf. Suffice to state that as far as the claim-in-reconvention is concerned, the plaintiff did not lead evidence to rebut the defendant’s claim and Mr Ngwenya submitted that in his view, the evidence-in-chief led from Mukaro would suffice. HH 251-25 HCHC 559-24 Now let me deal with the issues that I have identified as being those arising. As testified by Mukaro, clause 4 of contract covers the responsibilities of the plaintiff and clause 5 those of the defendant. It is critical to note that the contract is such that no cash is dispensed. The defendant is given a voucher to approach a supplier indicating the input to be collected. A PIN is used to identify the farmer and for purposes of debiting the account. The arrangement is such that the plaintiff pays suppliers in advance so that a farmer can collect agricultural inputs. It Is common cause that the defendant received the inputs and the PIN. Exhibit 2 on pages 35-36 of the record is a loan statement that was send to the defendant indicating the amounts owed. It shows inputs redeemed and collected by the defendant. In terms of payment as per clause 7, the farmer is supposed to pay from his produce by delivering the harvested grain to a selected party. If the amount realised is not enough, the farmer pays from other sources. As per the defendant’s testimony, the yield realised was only nine tonnes and realised USD$9,000. He however did not deliver this grain to a selected third party as per the contract. It is common cause that the defendant collected the first set of inputs on the 29 th of December 2022 and also on the 30th of December 2022. Where the parties differ however is on the aspect of top -dressing fertilizer that the defendant avers was delivered late and thus affected the yield. At the heart of the law of contract lies the time- honoured principle of freedom or sanctity of contract. It is not the duty of courts to re-write contracts for parties. In the case of Kempen v Kempen SC 14/16, this principle was aptly captured as being the freedom of parties to enter into a contract and the duty of the court to respect the agency that parties have in this regard. It was held as follows; “Our legal system pays great honour to the doctrine of sanctity of contract to the effect that lawful agreements are binding and enforceable by the courts. In Book v Davison 1988 (1) ZLR at p 369F, the court held that it is in the public interest that agreements freely entered into must be honoured.” To buttress this point, the court in Magodora v Care International 2014 (1) ZLR 397 (S) held that: “In principle, it is not open to the courts to rewrite a contract entered into between parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be on onerous or oppressive. This is so as a HH 251-25 HCHC 559-24 matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict, with its express terms.” Similarly, the court in the case of ZFC Limited v Tapiwa Joel Furusu SC 15/18 emphasised the same points as follows: “Contracts are sacrosanct unless evidence shows that they were not entered into freely and voluntarily.” I find that indeed the plaintiff has proved that the defendant breached the contract that he entered into freely and voluntarily. I say so for the following reasons. It is common cause that the defendant collected the first set of inputs on the 29th of December 2022 and also on the 30th of December 2022. It cannot be correct as asserted by the defendant that the plaintiff did not pay suppliers in advance when he was able to collect inputs a day and two after signing the contract. Where the parties differ however is on the aspect of top -dressing fertilizer that the defendant avers was delivered late and thus affected the yield. The defendant made much about the product being collected from what is termed on exhibit 2, CBZ AY warehouse and that the late ‘supply’ was responsible for the poor yield. Page 59 of the record on page 39 is an undertaking to pay USD$30 000 by the defendant to the plaintiff through his legal practitioners. No such amount was paid. The defendant did not stop there. On page 39 of the record is an affidavit of undertaking by the defendant dated the 28th of October 2023, in which he undertook to pay plaintiff USD205 000 upon disposal of an immovable property. The defendant insisted that these undertakings were conditional but in my view it adds to the layer of estoppel. The property was indeed sold but the defendant did not remit the money to the plaintiff as per the undertaking. He managed to pay USD$20 000 to reduce his indebtedness only after issuance of summons. The defendant accepted “late” supply of the top- dressing fertilizer when he could simply have refused. He made two undertakings to pay the plaintiff when he could simply have not done so. In Aris Enterprise (finance) (pty) Ltd vs Protea Assuarance Co Ltd 1981(3) SA274 (A) the court at p. 291 defined estoppel as follows: “The essence of the doctrine of estoppel by representation is that a person is precluded, i.e. estopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice.(see Jourbert The Law of South Africa vol 9 para 367 and the authorities there cited) The representation may be made in words, i.e. expressly or it may be made by conduct, including silence or inaction, i.e. tacitly(Ibid para 371); and in general it must relate to an existing fact(Ibid 372)” HH 251-25 HCHC 559-24 In my view, the defendant is estopped from denying indebtedness to the plaintiff. The defendant’s attempts to ‘challenge’ the interest calculation in my view were a poor attempt to resile from the contract. As per the testimony of Mukaro, clause 7 of the contract is critical. It lays out the financial arrangements in a simple and straight forward manner. Effective date of payment was the first of October 2023. Once a loan is not paid, the whole amount outstanding becomes due and payable. The defendant did not deliver anything at all so it follows that per clause 7:9, the defendant became liable to pay the amount claimed together with interest and costs as stipulated in the agreement. This is supported by exhibits no. 4 and 5 being the in duplum and interest rate schedules respectively. This is less the USD$20 000 that he paid after summons were issued. Let me now turn to the claim-in-reconvention. In my view, the claim is located in contract and the defendant is claiming contractual damages for what he terms gross negligence. It is trite that, in a claim for damages arising out of breach of contract the plaintiff has to be placed in the same position he would have been in had the contract been properly performed. See- Wynina (pvt) Ltd vs MBCA Bank Limited, SC-27-14. The court went on to state as follows, “A plaintiff who sues for damages is required to prove his damages. A court will not presume damages in the absence of proof of such damages by a plaintiff. However, the principle that a plaintiff must prove his damages is not a strict rule, what is required of a plaintiff is to place before the court all the evidence that is reasonably available to him. Before this principle can come into effect it must be established that the plaintiff has suffered some damages and that all that has to be established is the quantum of those damages. This was stated by SELKE J in the following terms: “But to make such dicta into inflexible rules applicable in every instance without regard to the circumstances of the parties in respect of the availability of the evidence, or to the precise nature of the claim, it seems to me, results not infrequently in injustice. There must be many types of claims due to breaches of contract which do not admit, for various reasons, of strict or detailed proof in terms of so much money. For example, loss of business, especially in relation to the future, cf. Bower v Sparks, Young and Farmers’ Meat Industries Ltd 1936 NPD 1 at p 23.” ( per Bowman v Stanford 1950 (2) SA 210 (D) at 222-223). In amplifying his claim, the defendant testified as follows. The plaintiff did not pay suppliers in advance on time. He gave an elaborate explanation about the planting days and time frames that could have resulted in a good yield. He did not get the PIN for the top dressing until the 6th of February 2023. The top -dressing fertilizer was actually only delivered on the 8th of February 2023. There were no challenges with the other suppliers at all. It turned out that the supplier for the top dressing was the plaintiff itself. The defendant highlighted the events and breach as per paragraph 9 of his claim -in-reconvention and put HH 251-25 HCHC 559-24 the blame squarely at the doorstep of the plaintiff. He spoke to what he considered to be inconsistencies in the contract between himself and the plaintiff. He explained the use of top- dressing despite its late delivery as being a measure to mitigate loss. The undertakings to pay that he made were conditional. He was emphatic in his assertion that by not receiving the top- dressing on time, the whole season was affected drastically. He explained that the damages were based on the average that would have been realised had the crop been successful and sold to the Grain Marketing Board. He put the figure at USD$402 000 less the USD$9000 realised hence the claim for damages for USD$393 000. The loss could only be ascertained at the time of harvest. He stated that he notified the plaintiff about the loss by way of a letter dated the 14th of September 2023. The defendant made constant mention of one Linda, a supposedly employee of the plaintiff. He testified that he was in constant communication with this individual and certain information was exchanged. It is trite that she or he who avers must prove. The relevant question remains whether or not the plaintiff is guilty of gross negligence thus breaching the contract. In a manner of speaking, the defendant is pleading that there is a causal link between the alleged late delivery of the top -dressing fertiliser and the loss suffered. Section 27(4) of the Civil Evidence Act deals with the admissibility of first -hand hearsay evidence. In Baron v Baron HB 92/21where it was defined as follows, “Hearsay evidence is defined as evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.” In my view, the evidence about what Linda said or did not say to the defendant is neither here nor there. It did not detract from the fact that the defendant entered into a contract freely and voluntarily with the plaintiff. I have already made findings on estoppel. In my view, the assertion that the top dressing indicates CBZ- AY as the supplier is neither here nor there. Did it show that the plaintiff breached the contract? It is a definite no. From the evidence led, it appears to me that the plaintiff did not breach the contract as claimed by the plaintiff. A contract was entered into between the parties. Inputs were collected as early as the first day of signing. The plaintiff as admitted by the defendant did inspect the crops. He relied on a letter dated the 14th of September 2023 as being notice to the plaintiff on the loss and the damages suffered. The letter as a matter of fact explains the loss HH 251-25 HCHC 559-24 as being due to delay of inputs and the weather. The averment by the defendant that supplies were made late flies in the face of him collecting inputs on the first and second days after signing the contract. Even if I were to find that there was breach as alleged, did the defendant prove the damages? I am reminded of the following dicta, “In Ebrahim v Pittman N. O. 1995 (1) ZLR 176H at 187C-D BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652(C) at 655H-656F to the following effect: “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…” The defendant despite not being an expert in agriculture went on to testify about the implications of the late delivery of top- dressing fertiliser on planting and harvest. What is glaringly missing is a report from an expert to support his assertion. The same applies to the pictures of the maize crop which in my view remain mere pictures. The pictures do not even show a before and after. No pictures of the crop that was eventually harvested were availed. While I am cognisant of the provisions of s21 of the Civil Evidence Act [ Chapter 8:01], relating to photographs, the court remained at sea as to what exactly transpired when the photographs were produced. I am also cognisant of s22 on expert and lay opinion evidence. However, a court as per s22(3) is not bound by such evidence. In casu, the defendant’s die was cast when he failed to back his testimony with what in my view clearly required a technical expert. This could have proved a causal link between late delivery and crop loss. The averment by the defendant that supplies were made late flies in the face of him collecting inputs on the first and second days after signing the contract. The letter that the defendant relies on does not take his case any further. In my view it is not a quantification of damages. It is actually a plea to the plaintiff to consider certain proposals. The defendant actually states that apart from an immovable property, there are no other assets to meet his obligation. The proposal was for a debt roll over to mitigate impact of the loss. It cannot be by any stretch of imagination be termed a quantification of damages. In any event, the contract is very clear in clause 6:10 that a farmer should inform the plaintiff of any actual loss, circumstances which resulted in the loss, and estimated value of the loss. I HH 251-25 HCHC 559-24 also discount the assertion that the defendant collected the top-dressing fertilizer late to mitigate loss. He did not even remit the crop harvested to the plaintiff in breach of the contract. He constantly asserted that in his understanding, the plaintiff could only recover the money owed through the crops realised. And yet the contract is in black and white that if the crop is not enough to meet the debt, the farmer shall pay using own other means. This explains why the defendant paid USD$20 000 from his own other means. The defendant damaged his own case by claiming different amounts from the matter filed in the general division of the High Court under HC4156/24 and the current one. The calculation in HC4156/24 was based on a figure of USD$432 000 and in casu on $402 000 as the amount that would have been realised from the Grain Marketing Board. In addition, there was no evidence at all placed before the court on the average producer prices apart from the defendant’s mere say-so. I also find that while the plaintiff’s witness gave evidence in a clear and calm manner, the defendant was evasive and not answering questions as put to him especially during cross examination. On costs, it is trite that these are discretionary. The defendant signed a contract agreeing to pay costs on a legal practitioner to client scale in clause 7.9. I see no reason to deviate from this contractual position. DISPOSITION It is clear that the defendant breached the contract and the plaintiff is entitled to relief that flows from such breach. On the other hand the defendant has failed to prove that the plaintiff breached the contract thus entitling him to damages. In addition, even if it were so, the defendant has failed to prove the damages. IT IS ORDERED THAT:- 1. Defendant shall pay Plaintiff the sum of US$312,822.71 plus interest thereon at the rate of 15% per annum calculated from the 1st October 2023 to the date of payment in full. 2. The defendant’s claim-in-reconvention be and is hereby dismissed. 3. The defendant shall pay plaintiff costs of suit on a legal-practitioner-to-client scale. HH 251-25 HCHC 559-24 Chimuka Mafunga Commercial Attorneys, Plaintiff’s legal practitioners Mboko T. G. Legal Practitioners, Defendant’s Legal Practitioners 10