Africa-Press – Zimbabwe. By Mary Taruvinga –
A leading beverage manufacture, Schweppes Zimbabwe Private Limited has lost a High Court case in which it was back pedalling in a deal it entered with a South African based supplier, Blakey Investments Private limited.
In a High Court judgement delivered on October 27, Justice Tawanda Chitapi blasted the company for seeking a declarator against Blakey basing on assumptions before he slapped the beverage dealer with costs.
Schweppes had issued summons against Blakey seeking an order declaring the supply agreement entered between the parties in May 2018 be declared illegal, invalid and of no force.
The agreement the parties entered had been varied at different stages during 2018 and 2019.
According to court papers, parties had entered and executed a purchase and supply agreement on May 8 2018.
In terms of the agreement Schweppes would purchase packaging material in agreed quantities and price.
The court heard the parties varied the agreement on May 30, 2018, and the variations made in material areas increased the duration of the initial contract from 18 months to 5 years.
The initial contract had been due to expire on December 31, 2019.
Because of the variation it was now to expire on June 30, 2023.
The variation also resulted in an increase in volume of product to be delivered by the defendant as well as price variation.
According to the hearing, the variations also added a new product a machine stretch wrap which was not included initially.
The contract was also varied on June 26, 2018, and March 19, 2019.
Another variation was headed Shrink Wrap Purchase Agreement and parties agreed to review minimum quantities of the agreement to be supplied as well as pricing.
Later Schweppes then said certain key terms of the initial agreement were not varied and remain extant.
The company said being resident in Zimbabwe it was bound by the Exchange Control regulations S I 109/ 1996.
It also said Blakey was a foreign resident for the purpose of that regulation.
Schweppes claimed both parties had violated the Control Exchange regulations in that they entered into the supply chain agreement before they both obtained exchange control approval prior to executing their deal.
It said this resulted in it incurring obligations to make payments outside Zimbabwe without Exchange Control authority.
This according to Schweppes rendered the agreement of no force or effect hence the declarator it sought.
Blakey disputed the assertions.
It said Schweppes had failed to aver its place of residence.
Blakey also argued that the provisions of SI 109 /96 did not render an agreement concluded without Exchange Control approval invalid or illegal.
Chitapi upheld the arguments by Blakey.
“In my view Schweppes seeks that the court should decide an academic issue whether or not the agreement contravened S I of the Exchange Control,” he said.
“I would not favour such a course in the interests of justice and public policy which favour that outgoing judicial process be allowed to run their course. I’m of the view that it is not in the interest of justice to exercise court’s decision in favour of issuing the declaratur in the circumstances of this case….I consider that the costs should follow the event and it will be so ordered that the plaintiffs claim be and is hereby dismissed with costs.”
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