Efforts to evade a US$234 500 debt by Marange Resources Pvt Ltd flopped after the High Court said the company cannot be excluded from the claim given existing facts.
The company has not yet been ordered to pay the amount but High court judge Justice Bongani Ndlovu ruled that it must explain its defence against the evidence of the complainant Brandon Bowen.
Bowen issued a summons in his individual capacity in 2016 claiming payment of US$234 500 plus costs of suit from Marange Resources.
The claim was for unpaid security services Bowen had allegedly rendered to the mining company.
Defendant defended the action.
Bowen told the court that he was contracted by Marange Resources’ predecessor, Canadel (Pvt) Ltd sometime in 2009 to provide men on horses security services in the mining fields of Marange.
When Canadel left the mining fields Marange Resources took over, and the contract which was predominantly oral, tacitly relocated to the company in that Bowen continued providing the security services and continued engaging the Accounts Department personnel of the company who coincidentally had been with Canadel previously, regarding payment of the outstanding bill.
The communication was through emails.
In some instances, Marange Resources personnel negotiated varying amounts for the security services and even paid him for the service.
For Marange Resources’ audit purposes, Bowen was classified by the company as its creditor.
The money paid to him was deposited into Two Mile Trading (Pvt) Ltd /Two Mile] bank account.
Bowen is one of the directors in the company.
On one occasion a payment was made into Bowen’s father’s bank account.
The court heard these payments to third parties were done with the knowledge and consent of the company because Bowen did not have a personal bank account.
The amount claimed was not disputed as well as the engagements between the parties.
However, in its plea Marange Resources denied entering into an agreement with Bowen.
It stated that Bowen was wrong in his view that Canadel “turned into” Marange Resources.
The company said Bowen must direct his claim to Canadel.
Marange Resources also denied ever making any clear or unequivocal acknowledgement of debt with respect to Bowen’s claim.
The company said Bowen entered into a contract for the provision of security services with an entity called Two Mile which is not a party to these proceedings and wanted his application trashed.
The judge however ruled otherwise.
“In this matter having considered the pleadings filed of record, the evidence adduced by the plaintiff, and the cross-examination that ensued, I find that this is not a case fit for absolution from the instance.
“Plaintiff has tried to explain why the payments made to him by Defendant were made into third parties’ bank accounts.
“Whether or not that explanation sustains his claim is not to be decided at this stage of the trial.
The judge said Marange Resources has to explain its defence against the evidence of the plaintiff and pleadings filed.
“It is trite that only when both parties have testified can a court decide on issues of fact in a matter.
“Accordingly, I find that Plaintiff has managed to establish a prima facie case upon which a reasonable court might find for the plaintiff,” said the judge.
He ruled, “It is therefore ordered as follows; The application by the defendant for absolution from the instance after the closure of the plaintiff’s case is dismissed.”
New Zimbabwe