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Council ordered to sell truck for $6 500

At a time when cars, like wine, are maturing with age instead of depreciating in value, the Harare City Council was ordered to sell a Mazda 1600 for only $6 500 when it had received an offer three times that amount but did not consider it because it had withdrawn the van from sale.

And High Court judge, Justice Smith, who made the ruling advised the council to reconsider its policy of not necessarily accepting the highest offer as the practice not only prejudiced the council by reducing the amount it received from sales but also gave scope for corruption and/or favouritism.

The council was taken to court by Lincoln Chendisaita Mutasa after it had advised him that it had accepted his offer by mistake believing it had offered him a Datsun instead.

The council invited tenders for 174 items in February last year and indicated that it reserved the right not to accept the highest or any tender.

Mutasa offered to buy a Mazda 1600, a motorcycle and four saws. On 16 April the council accepted Mutasa’s offer to purchase the Mazda for $6 500 on condition he paid the amount within seven days. Mutasa issued a bank certified cheque for that amount but the council declined to accept the cheque saying that Mutasa’s offer had been accepted by mistake.

The council said there had never been any intention to sell the Mazda for $6 500 which was far below the reserve price.

Mutasa decided to take the council to court to release the vehicle to him. Opposing Mutasa’s claim, the council said because there were so many items on offer the council had decided to use a graph system where the names for the tenders were matched with the item they wanted to purchase.

Mutasa’s offer for the Mazda, the council said, was item number 49. This was, however, placed on the graph by mistake on the column relating to item number 51 which was for a Datsun.

Mutasa’s bid, when considered in relation to the Datsun, was the second highest. A Nyarumwe, had made an offer of $7 000 for the Datsun but it was decided that since he had submitted other successful bids, Mutasa’s application should be accepted instead.

The council said when it came to preparing the letter accepting Mutasa’s application, it was written on the basis of his offer and not the graph. The council therefore advised Mutasa it was accepting his offer for a Mazda.

The council also said shortly after the tenders were opened the Mazda was withdrawn from the sale because it was required by the audit section for official use. It said although an offer for $18 500 was received for the Mazda, this was not accepted.

The council therefore argued that it had made a fortuitous mistake which could have been made by anyone in the circumstances.

Mutasa’s lawyer on the other hand argued that the error was unilateral, unreasonable and totally unacceptable.

After citing several authorities, Judge Smith said the mistake could not be justified because no “fault” could be attributed to Mutasa since he had done nothing which could have in any way led the council to believe that his offer for $6 500 was for any item other than the Mazda.

He said while the council’s mistake on drawing up the graph was understandable the mistake when the council wrote to Mutasa accepting his offer for a Mazda was totally unjustified as this should have been thoroughly checked.

“Before concluding, I feel constrained to comment on the policy adopted by the (council) in accepting the offer made by (Mutasa),” Judge Smith said. “According to the senior supplies officer, although (Mutasa’s) offer for the Datsun was not the highest, being $500 less than that of Mr Nyarumwe, his offer was accepted because Mr Nyarumwe had submitted successful bids for several other items.

“Therefore the (council) was prejudiced to the extent of $500 merely because it was decided that the sales should be “spread” amongst more buyers. Such a practice not only prejudices the city council by reducing the amount it receives from the sales but also gives scope for corruption and/or favouritism.

“In the case of Mr Nyarumwe’s bids, why was it that it was his offer for the Datsun that was rejected and not one of his other offers? After all, he may well have wanted the Datsun and been prepared to forgo one or more of the other items,” Judge Smith said.

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