Absolution from the Instance, Evidential Deficit and the Concept of Prima Facie

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

When this matter was called, counsel for the appellant applied to amend the grounds of appeal.

Counsel for the respondent was not averse to the application.

The matter was stood down to allow counsel to confer on the proposed amendments. When the matter resumed the parties indicated that they had agreed on the amendments. The grounds were, as a consequence, amended by consent.

The facts of this matter can only be described as tragic.

On 15 February 2015, the appellant, who was the plaintiff in the court a quo, proceeded to OK Mart in Hillside. He was accompanied by his wife and their daughter then aged 4 years 7 months. The family proceeded to shop. The child was within reach of her parents. At some stage during the shopping excursion a soccer ball display cabinet was observed to have fallen onto the floor. The minor child was underneath the cabinet. It is common cause that she sustained the following injuries as a result of the accident: fractured right femur; fractured left femur; tenderness and swelling of the pelvis and swelling of the ankle joints. As result of the injuries, she was hospitalized for more than a month whilst receiving treatment.

Following upon the injuries, the appellant, as father and guardian of the minor child, instituted proceedings against OK Zimbabwe, the respondent in this case, for a total sum of USD51,982=93 for shock, pain and suffering, permanent disability and loss of amenities as well as past and future medical expenses.

In its plea, OK Zimbabwe denied liability and the matter proceeded to trial.

At the close of the appellant's case, as plaintiff, OK Zimbabwe applied for absolution from the instance which the court granted.

The appeal before us is against the grant by the court a quo of the application for absolution. The grounds of appeal, as amended, are the following:

1. The court a quo erred in fact and in law in finding that the appellant failed to establish that the respondent, OK Zimbabwe, had been negligent.

2. The court a quo erred and misdirected itself by failing to consider documentary exhibits 2, 4, 5A and 5B which established that OK Zimbabwe had created an unsafe environment.

3. The court a quo misdirected itself in fact and in law by making the aspect of whether or not the minor child climbed the shelf decisive of the case.

4. The court a quo misdirected itself in making definitive factual findings that the area where the shelf was positioned was not covered by C.C.T.V. when in fact it was.

5. The court a quo erred in fact and in law in finding that it was unforeseeable that a child of about five (5) years would climb onto a display shelf where children's soccer balls of various colours were displayed.

In submissions, however, counsel for the appellant abandoned the fourth ground of appeal.

APPELLANT'S SUBMISSIONS ON THE MERITS

The argument presented by counsel for the appellant went as follows. He commenced his argument by moving the last ground. He contended that the court was wrong to find, as it did, that it was unforeseeable that a child of five would shop on her own. He submitted that it was not correct that the child was shopping on her own.

He suggested that, at all times, she was with her parents, and that, at her age, it was foreseeable that she would be fascinated by the display of soccer balls. As a result of the colours, a child would reach for the balls, and, if not within reach, would try and climb the display shelf containing the balls.

He argued that the court a quo further misdirected itself in making the question of whether or not the child climbed the shelf decisive of the case. He added that whether or not the child climbed the shelf did not absolve OK Zimbabwe of liability. He contended that OK Zimbabwe had created an unsafe environment and that the court was guilty of a grave misdirection in deciding the question of absolution on the premise that the child had climbed the shelf. He submitted that this was impossible as the shoes she was wearing did not enable her to do this.

He submitted that one of the issues agreed during the pre-trial conference was whether or not OK Zimbabwe had breached a legal duty to provide a safe environment. He added that the documents tendered into evidence, by the appellant, proved that OK Zimbabwe breached its duty of care in this respect.

He contended that the court a quo erred in finding that the appellant had not met the onus required at the close of his case. He submitted that the appellant established a prima facie case and that the evidence tendered, at that stage, met the required standard.

ARGUMENTS TENDERED ON BEHALF OF THE RESPONDENT

Counsel for the respondent, OK Zimbabwe, countered the appellant's argument mainly on three bases. He contended that the abandonment by the appellant of the fourth ground was fatal to his cause. He said that this was because there was a concession in the abandonment of that ground that the child had tampered with the shelf. He suggested that once the concession was made it destroyed the appellant's case which was premised on the allegation that the shelf had collapsed on its own accord.

He challenged the contention by the appellant that the shelf had collapsed due to one of its legs being corroded with rust. He contended that the appellant had alleged specific grounds of negligence but had failed to lead evidence to substantiate them.

He submitted that the appeal lacked merit and that the judgment of the court a quo granting absolution should be upheld.

I turn now to the ratio decidendi by the court a quo.

THE COURT'S REASONING ON THE APPLICATION FOR ABSOLUTION FROM THE INSTANCE

The court was alive to the fact that the child was injured. She was undoubtedly injured by the shelf. It is common cause that the shelf collapsed. The missing evidence was how the shelf fell and injured the child. In disposing of the application moved by OK Zimbabwe, for absolution from the instance, the court reasoned:

“What is critical in this case is that no one knows why the shelf fell at the material time. It cannot be far-fetched to assume that the unsupervised child was fascinated by the balls that were being displayed on the shelf in question (and) climbed on the shelf causing the same to succumb to the minor's weight and collapsed.

If the area in question had been covered by the CCTV this could have solved our problem. It cannot be said for sure that the shelf just fell on its own when the child was passing by or standing there. While it is regrettable that the child was injured, the plaintiff did not, in my view, manage to prove that the shelf fell due to the negligence of the defendant. It was unforeseeable that a child of that age would shop on her own and a child of that age would climb the shelf.”…,.

THE COURTS APPROACH TO APPLICATIONS FOR ABSOLUTION FROM THE INSTANCE

There exists, within this jurisdiction, a plethora of authorities on how a court should consider an application for absolution from the instance at the close of the plaintiff's case.

Crucially, the test to be applied is not whether or not the evidence for the plaintiff establishes what would finally be required to be established to obtain judgment. The evidence required, at this stage, is whether or not the plaintiff has made out a prima facie case to prove the claim. The correct approach to an application for absolution from the instance was set out in Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88…, by HARMS JA. He stated:

“The test for absolution to be applied by a trial court at the end of a plaintiff's case; the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff; Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).'

This implies that a plaintiff has to make out a prima facie case; in the sense that there is evidence relating to all elements of the claim, to survive absolution, because without such evidence no court could find for the plaintiff; Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4th ed at 91-92.

As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has, from time to time, been formulated in different terms, especially it has been said that the court must consider whether there is 'evidence upon which a reasonable man might find for the plaintiff' (Gascoyne (loc cit)) - a test which has its origin in jury trials when the 'reasonable man' was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue.

The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another 'reasonable' person or court.

Having said this, absolution, at the end of a plaintiff's case, in the ordinary course of events, will nevertheless be granted sparingly, but, when the occasion arises, a court should order it in the interest of justice.”

At the end of the day, the prime consideration in the exercise is whether or not there is sufficient evidence upon which a reasonable court might find for the plaintiff. But, that is not all that the court hearing the application must consider. As stated by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) 1 at 5-6:

“Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that there is justice between the parties, and, so far as is possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not be lightly deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance.

I might usefully quote here what was said by SUTTON J in Erasmus v Boss 1930 CPD 204 at 207:

'In Theron v Behr 1918 CPD 443, JUTA J, at p451 states that according to the practice in this court in later years judges have become very loathe to decide upon questions of fact without hearing all the evidence on both sides.'

We, in this territory, have always followed the practice of the Cape courts. In case of doubt at what a reasonable court might do, a judicial officer should always, therefore, lean on the side of allowing the case to proceed.”

See also Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)…,.; Bailey NO v Trinity Engineering (Pvt) Ltd & Ors 2002 (2) ZLR 484 (H)…,.

In paragraph 4 of the declaration the appellant alleged the following:

“At all material times (the) plaintiff was supervising and monitoring the movements of the minor child. A soccer ball display cabinet fell on the minor child who was standing close to it and injured her.”

OK Zimbabwe did not file a bare denial to this allegation. It responded in a plea in which it made positive averments. The response, in paragraph 2 of its plea reads:

“The contents of this paragraph are denied and (the) plaintiff is put to strict proof of the same. Defendant avers that:

2.1 The plaintiff left the minor child concerned unsupervised as he went around doing his shopping. Consequently, the child, who appears to have been fascinated by the balls that were being displayed on the shelf in question, climbed on the shelf causing the same to succumb to the minor's weight and collapsing.

2.2 At all material times, the shelf concerned was properly mounted in accordance with its specifications.

2.3 Before the child climbed on the shelf, as stated above, same was carrying less weight than that which its carrying capacity allows. It would have remained standing if the minor child had not climbed on it as stated above.

2.4 Not being the manufacturer of the shelf in question, the defendant is unaware of the allegation that the materials used to manufacture the same are cheap and not durable. Defendant does not accept that allegation and puts plaintiff to strict proof thereof.”

It seems to me that by pleading in the manner that it did, OK Zimbabwe alleged that it had knowledge of facts surrounding the collapse of the shelf. It pleaded that the child had climbed the shelf. It stated that the shelf collapsed due to the weight of the child. In my view, it has offered a defence as to why the child got injured.

The stance by OK Zimbabwe was that none of the witnesses called by the appellant saw what happened. That is correct. The declaration never suggested that the appellant's witnesses saw what happened. It was OK Zimbabwe who contended that the child had climbed the shelf causing the collapse.

In determining the application for absolution from the instance, the court a quo stated that no one knew why the shelf fell at the material time that the child got injured. This statement by the court appears to contradict the defence as contained in the plea which places an obligation on OK Zimbabwe to explain how the child got injured. OK Zimbabwe said that the child climbed the shelf causing it to fall, and, in the process, injuring the child.

Having said that no one knew why the shelf fell at the material time that the child also got injured, the court, in an apparent contradiction of the earlier statement, adopted the stance of OK Zimbabwe, as set out in the plea. The learned judge then went on to state that the unsupervised child, fascinated by the display, climbed onto the shelf causing it to fall.

There was no evidence before the court, at that stage, pointing to the child having climbed the shelf. This was a statement in the plea. The learned judge then, again in the absence of evidence to that effect, stated that if one of the legs of the shelf had broken, it did so due to either the sheer weight of the child or the fall. Again there was no evidence before the court to justify either of the scenarios so postulated.

It is evident that, by making findings of fact which were not supported by any evidence, the court a quo was guilty of a gross misdirection on the facts. A court is permitted to reach an inference based on the evidence before it.

The court did not undertake an analysis of the evidence and reach a conclusion based on inferences. At that stage OK Zimbabwe had not yet adduced evidence. The court ignored the positive statement in the plea that the child had climbed the shelf, and, further that the collapse occurred as a result of the child's weight. In addition, completely ignoring the pleadings, it then surmised its conclusions of fact, based, not on any evidence, but on what had been pleaded by OK Zimbabwe. In fact, it is fair to say that the court a quo went on a frolic of its own.

It stated, at p6 of the cyclostyled judgment:

“…,. The shelf, from the evidence, was not overloaded with balls since the father confirmed that some of the compartments were empty. If at all one of the legs of the shelf broke it, could have broken due to either sheer weight of the child or the fall….,.

I agree with counsel for the defendant that this is not a strict liability case.”

It seems to me that the statement from the court was premised on the defence mounted by OK Zimbabwe in the plea. If OK Zimbabwe had evidence establishing that the child in fact climbed the shelf and caused it to collapse it should have been put on its defence to adduce such evidence. It is not for the court to reach a conclusion as to what happened based on an averment in a plea without calling the pleader to prove its allegations.

If regard is had to the summary of evidence filed by OK Zimbabwe it records that three witnesses employed by it would testify and adduce evidence on how, and why, the shelf fell. It is alluded therein that the child, who was un-supervised, climbed onto the shelf causing it to fall on the child.

It seems to me that, allowing an application for absolution from the instance to stand, in circumstances such as these, would lead to a grave injustice. It appears that the manner of the collapse of the shelf was peculiarly within the knowledge of OK Zimbabwe and its employees. Justice can only be done if those witnesses testified as to the circumstances under which the child got injured.

In my view, the appeal has merit and the judgment of the court a quo warrants interference by this Court. In the premises, the following order will issue;

IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and in its place is substituted the following:

“The application for absolution from the instance is dismissed with costs.”

3. The matter is remitted to the court a quo for continuation of trial.

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

This is an appeal against the judgment of the High Court, absolving the respondent from the instance at the close of the appellant's case as plaintiff in that court.The FactsThe appellant is a statutory body set up in terms of section 4 of the Competition Act [Chapter 14:28] (“the Act”); ...

This is an appeal against the judgment of the High Court, absolving the respondent from the instance at the close of the appellant's case as plaintiff in that court.

The Facts

The appellant is a statutory body set up in terms of section 4 of the Competition Act [Chapter 14:28] (“the Act”); its functions, as set out in section 5 of the Competition Act, are as follows:

(a) To encourage and promote competition in all sectors of the economy; and

(b) To reduce barriers to entry into any sector of the economy; and

(c) To investigate, discourage, and prevent restrictive practices; and

(d) To study trends towards increased economic concentration, with a view to the investigation of monopoly situations and the prevention of such situations where they are contrary to the public interest; and

(e) To advise the Minister in regard to a number of issues that are listed in the Act.”

The respondent is in the business of providing internet services. So is Africa Online (Private) Limited (“Africa Online”). The two target different segments of the market, with Africa Online providing its services mainly to large corporates whilst the respondent caters for the lower end of the market.

On a date that is not given in the evidence, the respondent made approaches to the appellant, seeking information and advice on the necessary steps to take in merging with Africa Online. Such approach was not followed up with any notification in terms of the Competition Act.

An anonymous letter was written to the appellant informing it of an alleged merger between the respondent and Africa Online. There is a dispute as to whether or not when the appellant received the anonymous letter, it had commenced investigations into the alleged merger. For the purposes of this judgment, the dispute is of no import. What is common cause is that immediately after, or immediately before receiving the letter, the appellant commenced its investigation into the alleged merger.

The investigation entailed, and included, visiting the offices of the respondent in Mutare and Bulawayo and conducting a raid at the Harare offices. The investigations revealed that the respondent and Africa Online shared directors, offices, personnel, and strategies.

On the basis of these findings, the appellant issued summons against the respondent in the court a quo, on 9 September 2013, principally claiming an order declaring the existence of a notifiable merger between the respondent and Africa Online. The appellant also prayed for an order compelling the respondent to comply with the provisions of the Competition Act requiring the respondent to notify the appellant of the merger and to pay the requisite fee.

The suit was defended.

In its plea, the respondent denied having merged with Africa Online as alleged and put the appellant to the proof thereof. In consequence thereof, it denied being under any legal duty to notify the appellant of the merger as demanded.

The matter proceeded to trial on two issues. These were captured in the joint pre-trial conference minute as;

(i) Firstly, whether or not the defendant merged with Africa Online; and

(ii) Secondly, if the two entities had merged, whether or not such constitutes a notifiable merger in terms of the Competition Act and the relevant regulations.

After leading evidence from two witnesses, the appellant closed its case.

Thereafter, the court a quo absolved the respondent from the instance, as stated above, finding, in its final analysis, that there was no evidence before it upon which a reasonable court might give judgment against the defendant.

The Appeal

Aggrieved by the decision, the appellant noted this appeal, raising seven grounds of appeal.

In the main, the appellant attacks the findings of the court a quo as an improper consideration of the matter that was before it, in that, it took into account extraneous factors that are not provided for in the law. In particular, it was contended, in the grounds of appeal, that the court a quo expected the appellant to lead evidence on issues that are not required to be proved by the law, and, in the absence of such unnecessary evidence, erroneously absolved the respondent from the instance.

The Law

The law on when a court may grant absolution from the instance at the close of the plaintiff's case is settled; see Supreme Service Station (1969) (Private) Limited v Fox & Goodridge Limited 1971 (1) ZLR 1 (A) and United Air Charters (Private) Limited v Jarman 1994 (2) ZLR 341 (S). The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff.

Expressed differently, the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action. If there is some evidence on all the essential averments, absolution should not be granted. If there is evidence on some but not on all the essential averments, absolution may be granted, for, in that instance, the plaintiff will not be able to sustain and perfect its cause of action. This is so because an application for absolution from the instance stands on pretty much the same footing as an application for the discharge of an accused person at the close of the State case - albeit on a lower threshold of the burden of proof.

It follows, then, that a court granting absolution must be clear on the essential averments that a plaintiff has to make to sustain the cause of action.

Where the cause of action, as in casu, is based on the provisions of a statute, the essential elements of the cause of action are to be found within the four corners of the statute and not anywhere else.

Analysis

The appellant's cause of action is an alleged merger between the respondent and Africa Online. It is based on the provisions of the Competition Act, which, in section 2, defines a merger as “…, the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer, or other person…,.”

Thus, not in any order of importance or sequence, the averments necessary to sustain an action where a merger, as defined in the Competition Act is alleged, are:-

(a) The acquisition or establishment of an interest in the business of another;

(b) By the respondent;

(c) Which interest enables the respondent to control the assets or activities of that other.

For a court to grant absolution from the instance, in a suit in which a merger under the Competition Act is alleged, it must therefore be satisfied that there is no evidence before it showing that the respondent acquired or established an interest in the business of another which interest enables it to control the assets or activities of that other.

In finding that the appellant had not placed prima facie evidence before the court to sustain its cause of action, the court a quo agreed with the respondent's submission that the appellant had failed to lead evidence showing that the respondent had acquired majority shareholding in Africa Online. It also found that the respondent and Africa Online did not fish from the same pond as they had different target markets; that there was no evidence placed before it that a monopoly had been created and competition stifled, and that there was no evidence of a controlling interest in the sense of one entity having the upper hand or the wherewithal to dictate to the other or manipulate the market.

With respect, the court a quo took into consideration factors extraneous when assessing whether or not the appellant had adduced prima facie evidence to sustain the cause of action that it had brought against the respondent. It did not make reference to or seek to be guided by the provisions of the statute providing for the cause of action.

For instance, the court a quo found that the respondent and Africa Online did not fish from the same point. This was an unnecessary finding to make. In the suit a quo, it was not necessary for the appellant to aver and prove that the respondent and Africa Online were not in competition for the same market. This is because a merger, in terms of the Competition Act, can be established between any persons who may not be in any recognised relationship. It was therefore not necessary that the appellant lead evidence to show that the respondent and Africa Online shared the same market as this is not a requirement of the law.

Secondly, the court a quo granted absolution from the instance on the added basis that there was no evidence placed before it that a monopoly had been created and competition stifled. The law does not require that a monopoly be created as a result of the merger and that there be a stifling of competition. There was therefore no need for the appellant to lead evidence tending to show the creation of a monopoly and the stifling of competition following the alleged merger. Absence of such evidence was therefore an improper basis to ground the order that the court made.

Lastly, whilst the court a quo correctly identified the need for the appellant to lead evidence on the establishment of an interest in Africa Online that would enable it to control the assets or activities of Africa Online, it set the threshold of proof at a level higher than is stipulated in the law. The court required the appellant to lead evidence showing that as a result of the alleged merger, the respondent now had the upper hand and could dictate terms to Africa Online and also enable it to manipulate the market. This is not a requirement of the law.

On the basis of the above, I am satisfied that the court a quo erred and misdirected itself in granting absolution from the instance, after taking into consideration extraneous factors that were not necessary to be proven for the appellant to sustain its cause of action. The decision of the court a quo cannot stand and must be vacated.

Applying the test that I have set out…, to the facts of this matter, I am satisfied that the appellant adduced sufficient evidence before the court a quo to sustain its cause of action. It is therefore my finding that the appellant established a prima facie case for the respondent to rebut if it is to avoid judgment against it.

In view of the success of the appeal, costs of this appeal will follow the cause as prayed.

In the result, I make the following order:

(a) The appeal succeeds with costs.

(b) The judgment of the court a quo is set aside and substituted with the following:

“The application for absolution from the instance is hereby dismissed.”

(c) The matter is remitted to the court a quo for continuation of trial.

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

The plaintiff's pleadings are a mess.

They do not comply with the strict requirements of the High Court rules. The face of the summons does not identify the 13 Others. The declaration does not do so either. In addition, it does not comply with the rules of court. It contains extraneous information and is argumentative in nature. A letter of suspension, three death certificates, a burial order and the Supreme Court judgment, SC66-02, concerning the plaintiff and the second defendant are attached to the declaration. It is in the format of a founding affidavit rather than a declaration.

When the defendants requested for further particulars, the plaintiff responded by applying for default judgment. The default judgment was refused and the plaintiff was directed to file the further particulars.

On receipt of the further particulars, on 11 January 2010, the defendants excepted on 13 January 2010. The plaintiff responded by excepting to the exception. It is unclear from the papers what became of the exception.

The defendants, however, proceeded to file a plea on 14 April 2010.

On 6 May 2010, the plaintiff filed a 23 paged document entitled “plaintiff's opposing affidavit to defendant's plea” and three further attachments. The plaintiff withdrew the notice of opposition in question on 24 May 2010 and proceeded to change what had been the opposing affidavit into a 23 paged replication.

Notwithstanding the state of the plaintiff's pleadings, the matter was referred to trial on 5 November 2010 on the defendants' pre-trial issues. The issues were:

1. Who are the plaintiffs in this matter.

2. Have they been lawfully dismissed.

3. If not, have they suffered any damages, and if so, in what amount and on what cause.

The pleadings are in such shambles because the plaintiff was not represented by a legal practitioner. Rather, he relied on his trade union styled Zimbabwe Federation of Trade Unions.

In order to determine the real issue between the parties, I condoned the state of the plaintiff's pleadings and proceeded with the trial.

At the commencement of trial, the only plaintiff in attendance was Shadreck Moyo. The other unnamed thirteen were in default. The trial proceeded on the basis that only one plaintiff was before the court.

This affected the claim in the summons.

On 16 November 2009, the plaintiff, Shadreck Moyo and 13 others, claimed damages and compensation and outstanding wages and salaries in the sum of US$3,5 million; a further sum of US$3,5 million for outstanding wages and salaries and compensation for loss of earnings for a period of 12 years, interest on these sums at the rate of 30 per centum per annum and costs of suit.

At the trial, the only plaintiff before me reduced the amounts claimed to US$275,375=08 for outstanding salaries and benefits and US$500,000 for general damages.

He set out the history of the matter, and, by consent, referred to exhibit 1, the 25-paged bundle of documents that the defendants intended to produce as an exhibit.

He was an employee of the second defendant.

On 3 and 4 December 1997, together with other employees, he participated in an illegal collective job action. On 5 January 1998, and in terms of section 3(1)(a) of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985, he was suspended from employment without pay or benefits pending an application to the Ministry of Labour for his dismissal.

On 6 January 1998, the second defendant, through its Chairman, the first defendant, applied to the Labour Relations Officer for an order terminating the employment of 15 employees amongst whom was the plaintiff.

A hearing was held, and, on 20 July 1998, the Labour Relations Officer ordered the reinstatement of all the 15 employees without loss of pay and benefits. The second defendant appealed to the Senior Labour Relations Officer. On 11 January 1999, the Senior Labour Relations Officer made the following determination:

“From the foregoing facts, the determination of the Labour Relations Officer is set aside in its entirety.

Appellant is granted permission to dismiss the 15 employees with effect from the date of suspension.

Appellant must pay the 15 employees all their terminal benefits within 14 days of receipt of this determination.”

The 15 employees appealed to the Labour Relations Tribunal.

On 25 September 2000, the Labour Relations Tribunal upheld the appeal of one of the 15 but dismissed the appeal of the other 14 - who included the plaintiff.

The 14 appealed to the Supreme Court, which dismissed their appeal in in its entirety on 18 June 2002 in the case of Shadreck Moyo and Thirteen Others v Central African Batteries (Pvt) Ltd SC66-02.

Shadreck Moyo averred that he only received a copy of the judgment on 3 September 2009 and not on any earlier date because his legal practitioner at the time, Mr Mabuye, of Mabuye and Associates, met an untimely death.

He alleged that, as he had not been dismissed from employment, he was entitled to damages in respect of lost earnings of US$275,375=08.

He produced exhibit 2 and 3 to justify his computation.

He averred that, by 30 October 2010, an employee in Grade 5 was in receipt of a salary of US$240=03. He used this salary to calculate what was due to him over the 155 months that he has been on suspension. He used the same salary to calculate his pay leave over the 12 years that he has been on suspension. He also used the same salary to calculate the thirteenth cheque bonus over 12 years. He stated that he was entitled to receive daily allowances at work for sadza, milk, tea and toiletries. He conservatively placed the cost at US$1 a day and multiplied this by the number of days he was supposed to be at work over the 12 year period.

On the general damages, he thumb sucked the figure of US$500,000 but based it on the prejudice that has visited the education of his children. He did not state the number of the children and how they were prejudiced.

Counsel for the defendant applied for absolution from the instance on two broad grounds:

(i) The first was that the plaintiff failed to disclose a cause of action; and

(ii) The second was that even if he did disclose it, he failed to prove the damages he is entitled to receive.

The first ground calls for an interpretation of the order of the Senior Labour Officer.

The plaintiff averred that the second defendant was obliged to write to him informing him that he stood dismissed from the date of suspension, and, thereafter, pay him his terminal benefits within two weeks of the receipt of the order. He contended that the failure to write the letter of dismissal meant that he remained an employee.

Counsel for the defendant contended that he was dismissed by the Senior Labour Officer from the date of suspension.

Section 2(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.371 of 1985 read:

“No employer shall summarily or otherwise terminate a contract of employment with an employee unless -

(a) He has obtained the prior written approval of the Minister to do so; or

(b)…,. not relevant.

(c)…,. not relevant.

(d) The contract of employment is terminated in terms of section 3.”

Section 3 of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985 reads:

“3(1) Where an employer has good cause to believe that an employee is guilty of -

(a) Any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract;

(c) (b) – (i) not relevant

The employer may suspend such employee without pay and other benefits and shall forthwith apply to a labour relations officer for an order or determination terminating the contract of employment.”

Section 2(1) and 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.371 of 1985 replaced the common law right of an employer to summarily dismiss an employee.

Instead, the authority to dismiss an employee was given to the Minister or his delegate.

The second defendant complied with the requirements of this section, as demonstrated by the letter of 6 January 1998. In that letter, the second defendant applied for an order terminating the plaintiff's employment. The Senior Labour Officer granted an order terminating the plaintiff's employment with effect from the date of his suspension. The date of suspension was 5 January 1998.

It was not necessary for the second defendant to formally write to the plaintiff that it was terminating his employment from the date of suspension.

The contention by the plaintiff, that he remains an employee until he formally receives a letter terminating his employment, does not make sense. This is because if the second defendant was to write such a letter, it would simply state that he was dismissed from the date of suspension. He would not be entitled to claim earnings from the date of suspension cum dismissal to the date the letter is written.

The plaintiff's further submission, that section 13(1) of the Labour Act [Chapter 28:01] maintains the employer-employee relationship where terminal benefits have not be paid, is incorrect.

All it does is to criminalize unreasonable delay in payment and deign it an unfair labour practice.

The determination ordered that the plaintiff be paid his terminal benefits within two weeks of receipt of the determination by the second defendant.

There is, in exhibit 1, a letter for Mr Jeche, dated 25 January 1999, from the second defendant, inviting him to receive payment of his terminal benefits.

It was part of the plaintiff's case that his terminal benefits were not paid.

His terminal benefits would be for the period commencing on the date he joined the second defendant to 5 January 1998 when his contract was lawfully terminated. He, however, claimed terminal benefits from the date of his suspension to an unspecified date in the future when he will receive a letter of dismissal.

At the close of the plaintiff's case, both defendants applied for absolution from the instance.

The first defendant based his application on the ground that the plaintiff failed to establish the basis for citing him in in his personal capacity. The plaintiff contended that the first defendant was the one who signed the letter of suspension. He, however, conceded that he did so as the Chairman of the second defendant.

The pleadings averred that he was the Chairman of and shareholder in the second defendant at the material time.

It is trite that a private company is separate and distinct from its shareholders and office bearers. The plaintiff has not shown the basis for citing the first defendant in these proceedings. I am satisfied that there is no basis to place him on his defence and would grant him absolution from the instance.

The second defendant based its application on two grounds:

(i) The first was that the plaintiff had failed to disclose a cause of action against it.

In my view, such a ground should have properly been raised by way of exception. It appeared that the second defendant abandoned the exception it had filed.

Be that as it may, I see no basis for declining to determine the issue at the close of the plaintiff's case.

The plaintiff's action flowed from the determination of the Senior Labour Officer.

He mis-interpreted the determination and wrongly claimed for damages and loss of earnings arising from a period after he ceased to be an employee.

I am satisfied that he had no cause of action against the second defendant, other than the payment of his terminal benefits up to 5 January 1998.

He, however, did not claim, quantify, or prove those terminal benefits.

It is not feasible to grant terminal benefits he has not sought or proved.

(ii) The second basis for absolution sought by the second defendant was that the plaintiff failed to prove its claims.

I agree with the submission.

Thus, even if it could be found that he remains an employee until he receives a letter formally terminating his employment, the plaintiff did not justify why he chose a salary for a particular month for use over the period he believed he was entitled to loss of earnings.

He sought to rely on the provisions of section 22(1) of the Battery Manufacturing Industry Employment Regulations S.I. 665 of 1983.

However, that section deals with the calculation of a gratuity based on “the current monthly wage on termination.” It does not deal with the computation of loss of earnings over the period of suspension.

The insurmountable difficulty he faced was that a greater portion of the period that he claimed for loss of earnings, that is from 5 January 1998 to February 2009; the currency used in Zimbabwe was the Zimbabwe dollar.

He neither stated nor proved the amount due to him in local currency. He did not lay a basis for converting that amount into the current United States dollar dominated multi-currency regime.

Again, for the period from February 2009 to the date of his dismissal, it was his duty to establish and prove the actual amounts due to him as a Grade 5 employee of the plaintiff. He would have relied on information similar to the one captured in exhibit 3.

His evidence was woefully short in establishing the basis for awarding him general damages.

He based his claim on failure to give his children an education.

In my view, this was a novel ground.

General damages are often awarded for the hurt, pain, indignity, and injury the claimant suffers that he attributes to the wrongful actions of the defendant.

All I can say is that the plaintiff did not properly think through his claim for general damages. He failed to justify, establish, or prove it.

Had the plaintiff's interpretation of the determination been correct, I would have granted the second defendant absolution on the basis that the plaintiff failed to justify, establish and prove its claims. I, however, grant absolution to the first defendant on the ground that the plaintiff wrongly and improperly cited him in these proceedings; and to the second defendant on the ground that he, firstly, failed to establish a cause of action against it, and, secondly, did not claim or prove the terminal benefits due to him to the date of his dismissal.

The plaintiff's claims were totally hopeless.

In my view, they were designed to harass the defendants. The language used in the plaintiff's pleadings was intemperate and discourteous. The action amounts to an abuse of court process. The correct measure of costs awarded to the defendants is on the scale of legal practitioner and client.

Accordingly, it is ordered that:

1. The first and second defendants be and are hereby absolved from the instance.

2. The plaintiff shall pay the defendants' costs on the scale of legal practitioner and client.

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way.

Counsel for the plaintiff opposed the application, submitting that the plaintiff has shown, in his evidence, that the defendant was enriched by the payment made to the architects especially as the plans prepared are available and can be used.

No such evidence about the plans was led.

As to whether unjust enrichment was pleaded, counsel for the plaintiff suggested that it should be implied from paragraph 8 of the declaration which I have already quoted above.

Surely, that averment cannot, by any stretch of the imagination, be taken as pleading unjust enrichment.

What counsel is asking me to do is to stretch the imagination to elasticity limit.

The plaintiff merely averred, that, by paying to the architects, the plaintiff became the defendant's creditor and not that the defendant was unjustly enriched by such payment. As to how the debtor-creditor relationship so alleged germinated from those circumstances we are not told.

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded. Allowing that would not only embarrass the other party but also prejudice that party.

In an application for absolution, the test to be applied was set out by GUBBAY CJ in United Air Charterers v Jarman 1994 (2) ZLR 341 (S)..., as:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.

A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him; see Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A) at 5D–E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B–E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)..., BEADLE CJ said of that test:

“The test boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA T84 (TK) 85B–D; Standard Chartered Finance Zimbabwe Ltd v Georgious & Anor 1998 (2) ZLR 547 (H) 55 2 G–H; Modcraft Engineering (Pvt) Ltd v Tenda Buses (Pvt) Ltd 207-13; Katsande v Welt Huinger Hilfer & Anor HH396-13.

It is true that if the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff would not be lightly deprived of his remedy without first hearing what the defendant has to say, and such a defendant should not be allowed to shelter behind the procedure of absolution from the instance merely because he is afraid to go into the witness box; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)...,; Munhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382 (H)...,.

Right from the commencement of the trial, the plaintiff premised his claim on unjust enrichment. That is what counsel for the plaintiff said in his opening address. He did not, however, see any wisdom in amending the declaration to ground the claim on unjust enrichment, electing, instead, to leave it to the court to infer such a claim.

What remains at this stage, however, is that there is no claim based on unjust enrichment.

Even if it had been pleaded, I am not satisfied that the plaintiff has made a case based on unjust enrichment.

The requirements for such a claim were set out by BARTLETT J in Industrial Equity v Walker 1996 (1) ZLR 269 (H) 298..., where he said:

“I am of the respectful view that the principal requisites for a general action on enrichment can be regarded as aptly summarised by WOUTER De VOS in Verry King saanspreeklikheid in die Suid Africk aansc Reg (1958) as stated by SCHOLTENS in 1996 Annual Survey of South African Law, 150 at 152 as:

(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.”

What happened in this case is that a shareholder and founder member of the defendant who had been ousted from the position of Managing Director was fighting tooth and nail to force his way back into office; an office which was already occupied by Dr Saungweme.

Proceeding roughshod on all the rights and interests of others, and stating that he did not care whether anyone approved or not, he forcibly took office with no recognisable role to play except, perhaps, to cause alarm and despondency among everyone associated with the institution.

He threatened to sue Board members because they were accusing him of stealing money from the defendant.

In the midst of all this, he claimed to have taken his money, generated from his own medical rooms, and meant for the tuition fees of his children studying out of the country, and paid $50,000 of it to a perceived creditor of the defendant without anyone asking him to and certainly without any authority to do so.

When he did that, he was aware that the defendant was denying liability and was contesting the claim. In fact, as fate would have it, the defendant has successfully defended the architects' claim. It cannot be said, therefore, that it was liable and that the payment, if any, made by the plaintiff was for its benefit. No benefit whatsoever has been shown.

It is remarkable that not a single receipt for the fifteen (15) or so instalments allegedly made to the architects has been produced.

What has been produced in place thereof are dubious letters written by the architects who were woefully conflicted given they were also making a claim against the defendant and the plaintiff was their star witness in that doomed adventure. As to why, if at all payments were made, copies of receipts could not be produced, we can only speculate.

I am not satisfied that the evidence establishes that payment was indeed made by the plaintiff or that the defendant derived any benefit or enrichment from it as to ground a claim for unjust enrichment.

I agree with counsel for the defendant that the pleadings, as they stand, do not disclose a cause of action recognisable at law.

The evidence led does not do so either.

Even if we were to assume in favour of the plaintiff that he paid the money to the architects, it is still difficult to find the defendant liable for that payment.

This is because the defendant did not want payment to be made (the plaintiff admitted as such) as it did not hold itself liable. Just how then could a payment made against the will of the defendant be recoverable from it?

In advancing the argument that there can be no earthly basis upon which the defendant could be found liable for the folly of the plaintiff in paying money against the will of the supposed beneficiary, counsel for the defendant referred to a negotiorum gestio under the Law of Contract. He asserted that even that would not aid the plaintiff.

I agree.

Writing about the doctrine of negotiorum gestio, the learned author, R H CHRISTIE, Business Law in Zimbabwe, 2nd ed, Juta & Co Ltd..., stated:

“This doctrine permits any person to step in and act on behalf of another with the intention of benefiting him, unless prohibited by that other.

The gestor who thus steps in assumes the responsibility of completing the task he has begun, which will normally involve carrying on until the return of the absent principal, of accounting to the principal, and of showing a degree of care that will vary according to whether his position was thrust upon him or he intervened officiously.

The principal is liable to reimburse the gestor for all expenses properly incurred in a genuine attempt to benefit the principal, and the gestor has a right of retention over the principal's property until reimbursed.

Not being an agent, a negotiorum gestor does not create legal relationships between the principal and third parties, but, if he properly incurs obligations in his own name he is entitled to be indemnified by the principal.”

Even if a gestor is prohibited from acting on behalf of the other, he may recover his expenses to the extent that the other party has been enriched: Standard Bank Finance Services (Pty) Ltd v Taylam (Pvt) Ltd 1979 (2) SA 383 (C).

Unfortunately for the plaintiff, he does not qualify as a negotiorum gestor.

He was acting in no capacity at all as there was a Managing Director in place, Dr Saungweme, discharging that role. He may be taken to have been specifically prohibited from paying because he was aware that the defendant was denying liability and was contesting the claim. He could not then pay while swimming against the tide and then come back to claim from the very same defendant.

The law and the courts are not there to protect poor and extremely unreasonable business decisions; decisions made by people knowing fully well they are unwise hoping that the courts will sympathise.

The plaintiff simply had no business paying that money if he genuinely believed it was for the account of the defendant. If he did, there is no way any court, applying its mind reasonably, could make a mistake and find in his favour.

I conclude, therefore, that there is merit in the application for absolution from the instance. No evidence has been led upon which a reasonable mistake may be made to give judgment for the plaintiff.

In the result, I make the following order, that;

1. Absolution from the instance is hereby granted.

2. The plaintiff shall bear the defendant's costs.

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

At the conclusion of the trial, I directed that the parties file closing submissions by close of business on 31 October 2008. The plaintiff filed his submissions timeously. Despite numerous reminders to the defendant's counsel, the defendant did not file his submissions. I have therefore proceeded to prepare my judgment ...

At the conclusion of the trial, I directed that the parties file closing submissions by close of business on 31 October 2008.

The plaintiff filed his submissions timeously. Despite numerous reminders to the defendant's counsel, the defendant did not file his submissions.

I have therefore proceeded to prepare my judgment without the benefit of his submissions.

Background

The following is the background to the matter:

The plaintiff issued summons on 10 July 2007. The summons were amended on two occasions. The last amendment was by consent at the commencement of the trial. The plaintiff was claiming damages in the sum of:

(a) $1 billion for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life and shortened life expectancy;

(b) US$8,000 for pecuniary loss of a motor vehicle, a Nissan Sunny, and interest thereon at the prescribed rate from the date of summons to the date of payment;

(c) $1 billion and US$5,000 in respect of estimated future medical expenses and interest thereon at the prescribed rate from the date of summons to the date of payment;

(d) $700,576,793=45 and US$4,104 in respect of medical expenses incurred by the plaintiff and interest thereon at the prescribed rate from 6 May 2008.

(e) $10 trillion (old currency) being travelling expenses to and from physiotherapy sessions.

The claim arose from the accident which happened at the intersection of Breach Road and Kingsmead Road, Borrowdale, Harare on 23 July 2006. Both parties were driving. The plaintiff was severely injured.

The plaintiff attributed the cause of the accident to the sole negligence of the defendant which the defendant in turn totally denied.

The plaintiff alleged that the defendant drove at an excessive speed, a vehicle with faulty brakes, and without his lights on. He failed to give way at an intersection controlled by a Give Way sign and failed to stop or act reasonably when an accident seemed imminent.

On the other hand, the defendant attributed the accident to a sudden brake failure.

Issues for determination

Two issues were referred to trial:

(i) The first issue is whether or not the cause of accident was a sudden brake failure.

(ii) If the court were to find that it was not, the second issue is whether or not the plaintiff is entitled to the quantum of damages claimed.

As the defendant had pleaded that the accident was as a result of a sudden brake failure, there was a presumption of negligence.

Although the burden of proving negligence remains with the plaintiff, the defendant was expected to give an explanation which negatives the probability of negligence on his part.

As stated in South African Motor Law, COOPER and BAMFORD, 1st Edition…,:

“In many cases where a mechanical defect is advanced as a defence, the circumstances of the collision raise an inference of negligence, res ipsa loquitur, which calls for an explanation from the defendant.”

The defendant, in addition to showing that the collision resulted from a mechanical defect in his vehicle, was required to show that the defect in question was unknown to him and that through the exercise of reasonable care the defect would not have been discovered: see South African Motor Law, COOPER and BAMFORD, 1st Edition…,.

Defendant's case

Defendant's evidence

The defendant testified first. The following is his evidence:

Prior to the accident he was at home. He lived in the vicinity of the scene of the accident. At about 2210hours, he got into his vehicle to go and drop off his cousin, Dexter, near Sam Levy Village, Borrowdale. He was accompanied by his friend Michael Snape.

The vehicle had been purchased for him two years before the accident for his 16th birthday. He however only got it a year later. He had used it for eight months and it was sent to Fasfit for service. The service included a new gear box, panel beating, and re-spraying. He had used the vehicle for ten days before the accident and had not noticed any problems with the brakes. The person who had repaired the vehicle had relocated to Australia and he could not get a report of the repairs that had been effected on the vehicle during servicing.

There were a lot of potholes on the road, and, as a result, he was driving slowly at a speed of 70km/h. He was driving along Kingsmead Road. The street was not lit; therefore, as he proceeded towards the intersection with Breach Road he put the gear into neutral and started freewheeling when he was between 125 and 150m from the intersection. He was travelling at about 65km/hr.

As he saw the intersection, he knew that he was obliged to give way.

He was about 60 to 50 meters from the intersection when he applied his brakes. He then realized that he was not slowing down. He stamped on the brakes. He thought there might be a leak of the brake fluid. He therefore pumped the brakes in the hope that they would work. The car did not slow down.

He saw the plaintiff's vehicle also entering the intersection. They entered the intersection at the same time. He could not stop as his brakes were no longer working. He then collided with the plaintiff.

Following the impact, the plaintiff's vehicle did a 180 degree spin. His vehicle hit a lamp pole which was 12 to 15 meters from the intersection and faced where he was coming from. His headlights were on. He explained that his vehicle has what are called flat lights. These are lights that fold in when the engine stops running. When the engine is on, the lights open up. The defendant testified that his lights were still facing up after the accident. Both the plaintiff's vehicle and his were extensively damaged.

He testified that he paid a fine for driving a vehicle without brakes. This was at the instance of his aunt and father. However, under cross examination, he testified that he did not have a clear mind at the time when he paid the fine.

I found the defendant did not fare well both in his evidence-in chief and under cross-examination.

He contradicted himself in material respects. He testified in his evidence that he knew that the intersection was controlled by a Give Way sign against him and he was obliged to give way. He said:

“I tried to put on brakes and I saw that they were not working about 50 to 60m before the intersection. I knew that a state of emergency had occurred as I had an obligation to give right of way….,.

As I came closer to the intersection, at about 150m, I took my car out of gear and free-wheeled towards the give way as I could not identify where the intersection was. 60m from the Give Way, I started applying brakes. I noticed that they were not working.”

After a lunch break, the defendant came back with a changed story.

He testified that the plaintiff is the one who was supposed to have given him way.

However, under cross examination, he reverted to the original testimony that he knew that there was a Give Way sign. When he was asked, under cross-examination, whether or not he was familiar with the road signs at the intersection, he stated that:

“I knew that there was a Give Way, but, there were no road markings and the road sign was across the road.”

It is clear from the evidence that the new story, after the lunch break, was a fabrication intended to evade the truth and mislead the court. It is my view that the defendant was therefore not a credible witness.

Michael Mukombami's evidence

The defendant called two witnesses. The first witness was Michael Mukombami.

At the time of hearing, he was the Acting Senior Vehicle Inspector. He had been in the employment of the Vehicle Inspection Department for 13 years since 1985. One of his duties was to examine vehicles involved in road accidents.

He examined the defendant's vehicle following the accident and issued the notice prohibiting use of vehicle in the plaintiff's bundle of documents marked as Exhibit G.

He examined all the systems and the body of the defendant's vehicle to assess the damage and the cause of the accident. It was his finding that the front of the car was extensively damaged. He could not state whether or not the lights were on prior to the accident because of the extent of the damage and because the headlights were crushed.

He found that there was no brake fluid in the master cylinder. The right front brake hose had separated leading to fluid leaking. He concluded that the hose separated as a result of the impact of the accident. This conclusion was based on the fact that the hose was still wet from the leaking oil.

The inspector disputed the assertion, by the defendant, that the brakes had failed before the accident.

He testified, under cross-examination, that the nature of the damage to the defendant's vehicle showed that the vehicle had been travelling at a very high speed.

The witness gave his evidence well. The plaintiff's counsel did not need to cross examine the witness to great lengths. He was an independent and credible witness who corroborated the plaintiff's case…,.

I preferred his evidence to that of the defendant.

I am guided by the decision in Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) where it was held that expert evidence can be preferred where the direct evidence of eye witness of a collision is not credible.

Michael Snape's evidence

The second witness was Michael Snape. He was seated in the front passenger seat when the accident occurred.

He was talking to Dexter who was seated at the back. He had not been paying attention to what was happening in front as he was leaning over talking to Dexter. He however, at one stage, noticed that the defendant was “stressing and was stamping his foot.” It was apparent to him that the brakes had failed. By the time he turned his head from Dexter, who was seated in the back, the accident had already happened.

He assumed that the vehicle was in neutral because it was not accelerating. He could not confirm if the defendant was indeed in neutral.

He confirmed, under cross examination, that he could not conclusively say that the brakes failed.

This witness's evidence was full of assumptions.

He had not been paying attention to the defendant's manner of driving as his attention was directed at Dexter who was seated in the back. He could not conclusively state that the brakes had failed.

He testified that he noticed that the defendant was having problems with his brakes when they were 200m from the intersection. The defendant put it at 60m. It was not clear how he would have estimated the distance when he was concentrating on Dexter.

Not much credence can therefore be given to most of his evidence.

However, he was conclusive that the plaintiff was already in the intersection when the accident occurred. This contradicted the defendant's evidence that the parties entered the intersection at the same time.

Plaintiff's case

The plaintiff's version of the accident was as follows:

He testified that he had lived in the neighbourhood of the scene of accident for 12 years. He was familiar with the intersection where the accident occurred. He had been travelling along Breach Road in an easterly direction. The road had not been repaired for over five years and was full of potholes. He was therefore driving slowly.

When he got into the intersection with Kingsmead Road, he was suddenly hit on the right driver's side by the defendant's vehicle. The defendant had been driving along Kingsmead in a northerly direction. The impact caused the front wheels of his vehicle to get off the ground. His vehicle rolled twice. He was thrown out of the window. He hit against a durawall. His vehicle hit a ZESA pole some distance away and across Kingsmead Road.

The accident happened so suddenly that he could not react.

The defendant did not have his lights on otherwise he would have noticed him and taken corrective measures. There was a Give Way sign against the defendant.

It was his evidence that the defendant must have been moving very fast to cause his vehicle to roll over as it did and for him to be thrown out of the vehicle. He testified that even if the defendant's vehicle had working brakes, he could still not have stopped the vehicle from hitting into him because of the high speed he was traveling at.

The plaintiff sustained severe injuries.

He was taken to Parirenyatwa Hospital. He was in a coma for a week. Thereafter, he was in the High Dependency Unit for another seventeen days. He spent seven and a half months in St Giles Rehabilitation Centre. The total period of hospitalization was about one and a half years.

He was placed under Professor Kalangu's care. He produced a report by the Professor on the extent of his injuries. The following is the full text of the report by the Professor dated 12 November 2007:

“This is to certify that the above named is under my care since 24-07-06. Patient was apparently involved in a Road Traffic Accident on 06/05/2006 in which he sustained complete paralysis of the left and complete paralysis both lower limbs. This motor impairment to upper limb due to major destruction of the brachial plexus (brachial plexus is a structure made by the nerves which supplies power and sensation to the upper limb) and by compression of the spinal cord for the lower limbs. Patient's conscious level was normal (15/15). Radiological investigations revealed: fracture of the left clavicle, fracture of the spine in C5 and C6 and MRI revealed a dislocation of the vertebra in C5-6 associated to spinal cord compression.

Patient was taken to the operating theatre on 29/07/2006 and spinal cord decompression + fusion were carried out. Post operatively, patient made slow but significant recovery.

Currently, he still has weakness of the forearm and arm on the left side. Moreover, patient suffers now from pain which we call, in neurosurgery, phantom pain and is typical of this type of lesion.

This patient will, unfortunately, have pain for a long time and another operation for this purpose is not excluded. In the meantime, patient requires a lot of physiotherapy. Mr. Mbundire is walking now on his own.

His percentage of disability is 60%.

If you require any further information please do not hesitate to contact me.

Yours truly,

Prof. K. K. N. KALANGU
Neurosurgeon.”

(The plaintiff produced a report dated 20 June 2008 whose contents are identical to the above except that it was signed by someone else on behalf of the Professor).

The plaintiff produced another report by Professor Mielke, of the Clinical Neurophysiology Laboratory, Parirenyatwa Hospital, Harare, dated 11 December 2006. The report reads:

“Clinically, he has weakness of all the muscle groups in the left arm, with no movement in shoulder and elbow muscles.

There is no sensory loss.

EMG today shows active denervation as low at T1, which is much more consistent with a brachial plexus lesion than a spinal injury: the upper plexus is seriously injured with no sign of recovery at present, but, the lower plexus should show good improvement.

I would recommend repeat studies in six months.”

Before the accident, he was in charge of sport and discipline at St Johns College, Borrowdale. He used to jog a lot. He used to referee rugby matches. He was responsible for rugby, swimming, hockey and athletics, and, all these activities required that he be fit at all times. He could play social soccer, rugby, and cricket.

He cannot participate in all these activities anymore.

Of particular concern was the adverse effect of his injuries on his relationship with his daughter who does not understand why her father can no longer do the activities he used to do before the accident....,.

QUANTUM OF DAMAGES

There is no denying that the accident was a major tragedy for the plaintiff and his family which was also costly for them....,.

General damages

It was not seriously disputed that the plaintiff will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

He has a weakness of the forearm and arm on the left side and suffers from pain for a very long time. The upper plexus is seriously injured with no sign of recovery at the time the plaintiff was examined.

The term “plexus” is defined in Butterworths Medical Dictionary to mean an interwoven network of nerves or blood vessels.

His disability is estimated at 60%.

The plaintiff was a sportsperson. This was confirmed by the defendant. Therefore, the injuries from the accident have resulted in a greatly reduced quality of life. The injuries have affected his relationship with his daughter which was previously very close.

The plaintiff claimed the sum of $1 billion dollars for the pain and suffering, disfigurement, loss of amenities of life, and short life expectancy.

The plaintiff would ordinarily be entitled to the damages had his disability been final and stationary at 60%.

It should be noted that, except for the dates and the signatures, the two reports from Professor Kalangu, dated 12 November 2007 and 20 June 2008 are identical. This is despite the fact that a period of seven months had lapsed after the first report.

One would have expected the later report to have indicated any changes that may have occurred during that period. It appears that whoever signed on the later report merely printed the report of 12 November 2007.

The report by Professor Mielke, dated 11 December 2006, stated that the “lower plexus should show good improvement.” It is not clear to what extent the improvement will affect the rate of disability as assessed by Professor Kalangu.

The report further states that there should be a repeat study in six months time from 23 July 2006. The plaintiff did not advise the court whether or not he had gone for the repeat study, and, if so, the results thereof.

However, the impression given by both Professors Kalangu and Mielke is that the plaintiff may improve with rehabilitation and treatment. The disability is therefore debatable.

The debate could have been resolved had the plaintiff led evidence from any of the two doctors.

In the case of Ebrahim v Pittman NO 1995 (1) ZLR 176 (H)…, BARTLETT J commented on the approach in assessing damages and…, said:-

“It is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or inadequate factual basis for an assessment, and it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of loss could have been made.”

It is my view that the plaintiff has not placed before the court adequate evidence to enable it to assess the degree of disability and hence the general damages that the plaintiff is likely to suffer.

In the result the defendant should be absolved from the instance....,.

Future Medical Expenses and Transport Costs

The claim for future expenses was $1 billion and US$5,000. The expenses are for physiotherapy which the plaintiff has to attend once a week and for drugs that he is required to take. The plaintiff also claimed transportation expenses in the sum of $10 trillion dollars in respect of the physiotherapy sessions.

The expenses must be proved to the satisfaction of the court.

The plaintiff relied on a quotation from Helensvale Pharmacy to prove that he will be required to spend at least US$55 per month for medication for the pain and to help him sleep. He also appears to have relied on the report from Jacquie Simpson that he still requires rehabilitation therapy at the rate of US$5 per session.

It is not in issue that the plaintiff will require transport to attend physiotherapy and rehabilitation. However, the plaintiff did not indicate how he arrived at the amounts claimed. It is not clear how many sessions he will be required to undertake.

It should be noted that the report from Professor Mielke, however, does not detract from the fact the plaintiff will require future attention, and, therefore, incur expenses. The documents that he has produced give a fair idea of the expenses that the plaintiff is likely to incur.

It is my view, again, that the plaintiff has not placed before the court adequate evidence to enable it to assess the future expenses that he is likely to suffer.

In the result, the defendant, again, should be absolved from the instance....,.

Replacement Value of Motor vehicle

The last claim is for the replacement value of his vehicle in the sum of US$8,000.

The claim was supported by two quotations from Borrowdale Auto and Tandem Motors (Pvt) Ltd. Both are dated 24 September 2008.

The defendant put into issue these damages.

The defendant contended, during the cross-examination of the plaintiff, that the claim for US$8,000 was incompetent because the quotations were only obtained over two years after the accident.

It is trite that delictual damages are calculated as at the time of the delict: see Muzeya NO v Marais & Anor HH80-04; Monica Komichi v David Edwin Tanner & Anor HH104-05; Edward Marume & Anor v Todd Muranganwa HH27-07; and SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A).

One of the exceptions is where the plaintiff can justify the delay in coming up with the damages at the time of or soon after the accident: see Cargo Carriers (Pvt) Ltd & Anor v Nettleford & Anor 1991 (2) ZLR 139 (SC).

The plaintiff explained that he had been hospitalised for a period of almost one and a half years. During that period he could not have obtained the quotations because he was incapacitated. His family was also concentrating on his welfare.

It appears to me that the explanation would have been plausible had the quotations been obtained at the time when summons were issued. Summons were issued on 27 October 2007. The plaintiff was then claiming $500,000,000 (old currency).

Under cross examination, the plaintiff explained that, that amount reflected the replacement value of the vehicle at the time. He explained that, as a result of inflation, he had to obtain new figures.

It is my view that the plaintiff failed to explain, satisfactorily, the delay between the issuance of the summons and the obtaining of the quotations.

The explanation that the new quotations were obtained because the original amount had been eroded by inflation cannot be sustained.

It has been stated, in a number of cases, that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt according to when the plaintiff sought to exact it. The result would be in conflict with the principle of nominalism: see Muzeya NO v Marais & Anor HH80-04; Monica Komichi v David Edwin Tanner & Anor HH104-05; Edward Marume & Anor v Todd Muranganwa HH27-07; and SA Eagle Insurance Co. Ltd v Hartley 1990 (4) SA 833 (A).

It is my view that the plaintiff has therefore failed to establish the damages of US$8,000.

As in the other claims, the defendant must be absolved from the instance.

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing ...

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.

It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing the plaintiff to litigate on the matter. By the time the litigation was resolved, in favour of the plaintiff, the imported resin, which remained uncleared for customs purposes, had become moribund and useless to the importer, thereby causing the total loss that was claimed in the summons under various heads…,.

The claim was defended primarily on the basis, that, in seeking to levy duty on a higher tariff than previously levied, the defendant was not acting with malice and that its actions were not wrongful and unlawful to ground an action in delict. Further, it was denied that the containers of the imported resin were presented to the defendant for the purposes of customs clearance.

The facts giving rise to the suit between the parties are largely common cause.

The plaintiff is an established public company, specializing in the production and manufacture of timber and timber products. It is listed on the local bourse. As part of its manufacturing processes, it uses a certain resin (hereinafter referred to as “the chemical”), that is imported into the country and import duty paid.

Over a period of about ten years, the plaintiff imported this resin at a steady 5% duty payable to the defendant.

In or about February 2005, the plaintiff received four containers of the imported chemical. When it presented the chemicals to the defendant for clearance, duty was levied not on the usual and expected 5% but at 25%.

The plaintiff approached this court for adjudication on the correct level of duty payable and its contentions were upheld. The defendant immediately noted an appeal against the decision of this court. In the meanwhile, the parties reached an agreement that the four containers be released upon the plaintiff paying a deposit against the required duty.

Again, in the meanwhile, in May 2005, the plaintiff imported into the country ten other containers of the chemical while the legal wrangle was still on. There is a dispute as to whether these ten containers were presented for customs clearance or not….,.

On 7 April 2006, the Supreme Court handed down its judgment, upholding the High Court judgment and vindicating the plaintiff's stance.

In June 2006, the ten containers of the chemical were cleared by the defendant at 5% duty. It was then discovered that the chemical had become moribund and valueless to the importer.

On 27 September 2006, the plaintiff issued summons against the defendant as detailed above.

In the summons, the plaintiff claimed the sum of US$285,123=76 as the replacement value of the chemical that went moribund; US$20,016=44 as the value of orders that were lost as a result of the plaintiff's failure to use the moribund chemical; and the sum of US$404,807=80 as damages for lost business.

At the trial of the matter, three issues had to be resolved by evidence. These were;

(i) Firstly, whether the order issued by this court also covered the ten containers, the subject of this dispute; and

(ii) Secondly, whether the ten containers were presented to the defendant for duty purposes;

(iii) Thirdly, in issue was the quantum of damages that the plaintiff would be entitled to in the event that the defendant was found liable.

In support of its case, the plaintiff led evidence, firstly, from one Joseph Chikwana. He was the plaintiff's Purchasing Manager at the time the dispute arose.

His testimony was largely to reiterate the facts that are common cause in this dispute concerning the first four containers of the chemical. Regarding the ten containers forming the subject of this suit, he testified as follows:

These were imported about six months after the first four and in respect of which the parties were before this court, locked in litigation over the correct tariff to be used for calculating duty. The ten containers came through Beira, and, when they arrived in Mutare, the plaintiff sought to have them cleared. The plaintiff did not submit any documents to the defendant as there was a pending case between the parties. The containers were placed in a bonded warehouse.

When the customs clearance agent came back with the news of the stalemate between the parties, the witness personally visited the defendant's office and was attended to by a Mr Chamboko and a lady officer who was assisting Mr Chamboko. The discussions referred to the pending case and the parties felt that they could not move from that position due to the pending litigation. The defendant demanded duty at the higher rate which the plaintiff was not in a position to pay at the time.

The witness was involved in the formulation of the claims that the plaintiff finally brought against the defendant.

He explained that the claim for $22 billion was the fees that the plaintiff paid to the agent to have the containers released.

During the period of the dispute, the plaintiff had pending orders from its overseas customers. Because of the time it took to resolve the issue, the plaintiff was unable to meet the orders, resulting in the orders being cancelled. The value of the lost orders was captured in a spread sheet that the plaintiff's Finance Department generated. The spread sheet was adduced into evidence. The value of the lost orders was in the sum of US$74,134=97.

Using a profit margin of 27%, the plaintiff claimed damages in the sum of US$20,016=44 under this head.

The chemicals expired whilst they were in the containers and awaiting clearance. The value of replacing the chemical was in the sum of US$285,123=76.

During the time that the parties were locked in the dispute, the plaintiff could not produce most of its products and thus lost business due to the unavailability of its products. It calculated this loss at US$404,807=80. Another spread sheet was adduced into evidence, through the witness, showing the plaintiff's calculation of the lost business.

The plaintiff tried to mitigate its damages by borrowing glue from other timber processing companies.

When the judgment of the High Court became available, in November 2005, the witness took the judgment to the defendant, seeking release of the ten containers. He was informed that the defendant would appeal against the judgment - which they did.

Pending determination of the appeal, the plaintiff again approached the defendant for the release of the containers. The approach was not successful leading the plaintiff to approach this court on a certificate of urgency. No judgment was handed down in the matter which was heard on 8 December 2005.

In my view, the witness is an articulate and confident man who fared well under cross examination. He was forthright in his answers to questions put to him under cross-examination and readily admitted to some of the shortcomings in the assumptions that had been used in calculating the damages claimed by the plaintiff. While I found the witness unnecessarily verbose in his responses, I have no reason to disbelieve his evidence.

The second witness to testify on the plaintiff's behalf was one Prince Nyemba. At the time, he was the plaintiff's Finance Director. He joined the plaintiff's employment in August 2006 and was not yet with the plaintiff in May 2005 when the events forming the subject of this trial were unfolding. The plaintiff naturally keeps records of its transactions and the witness had access to these.

The witness then testified as to what the plaintiff's records revealed its loss to be as a result of the delay in having the glue released to it by the defendant.

Under cross-examination, the witness admitted that the claims by the plaintiff had been calculated without taking into account certain exigencies and variables such as changing exchange rates and fluctuating costs of production.

Due to the fact that the witness was not an employee of the plaintiff at the relevant time, and also due to the concessions that he made under cross examination, that the plaintiff's claim was aggressively if not inaccurately calculated, I shall place marginal probative value on his testimony and will only rely on it where it is corroborated by other reliable evidence.

After the testimony of this witness, the plaintiff closed its case.

The defendant opened its case by calling one Clements Kwenda. He is employed by the defendant as a team Leader at Forbes Border Post, having joined the then Department of Customs and Excise in 1990.

The witness detailed the procedures that an importer of goods into the country has to observe before his or her goods can be cleared. Regarding the claim before the court, he testified as follows:

The plaintiff imported two separate lots of chemicals. Firstly, it imported four containers of the chemicals. An entry for the four was submitted to the defendant. A dispute arose as the defendant called for duty at a rate higher than the plaintiff was offering. The matter was then referred to the courts. At a later stage, and while the matter was pending before the court, the plaintiff paid a deposit for the release of the four containers.

As at 25 February 2005, the plaintiff was aware that it could have the ten containers released upon payment of a deposit.

In respect of the ten containers, Bills of Entry for the ten were submitted to the defendant on 29 June 2006. The containers were all cleared on the same date. Prior to this, he was unaware of any letter that the plaintiff had written to the defendant seeking the release of the ten containers. He was aware that a letter had been addressed to the defendant's Harare office though he had not seen it.

Under cross-examination, the witness could not dispute, that, for the previous eleven years the plaintiff had imported the chemical at 5% duty. In his opinion, the officer who inspected the goods and asked for duty at a higher rate was simply doing his work and did not err. He did not agree that the departure from the classification that had been used for the past eleven years had been done with an improper motive.

The witness gave his evidence well. I find that most of his testimony was on facts that are common cause. He was clear as to what transpired between the parties although his attempt to draw a distinction between the Harare and the Mutare offices of the defendant was without basis. On the main, I will rely on the testimony of this witness.

The defendant called the testimony of one Clifford Mubaiwa Chamboko next. He is the man in charge of the defendant's offices in Mutare.

On 17 February 2005, a meeting was held in his office pertaining to the clearance of the four containers. The plaintiff's first witness and the clearing agent were in attendance. The tariff dispute between the parties was discussed.

At no stage did the defendant refuse to accept the entry relating to the ten containers. There was no meeting between the parties regarding the ten containers.

Under cross-examination, the witness maintained that the defendant was justified in re-classifying the imported chemicals. He pointed out that the classification of imports is a complex matter and that for that matter, errors would occur.

The witness gave his evidence in a very measured way; so measured was he, that, at times, he appeared slow. Despite this, I have no reason to disbelieve his evidence as, in my view, there are few material disputes of facts in this matter.

After the testimony of this witness, the defendant closed its case.

At the pre–trial conference of the matter, eight issues were identified for trial as follows:

1. Whether the declarator issued by the Honourable Justice Hungwe, under case no HC838/05, covered the four containers or the ten containers, which are the subject matter of this dispute;

2. Whether the containers were declared for duty purposes;

3. What is the procedure to be followed by an importer of goods in circumstances where there is a dispute in relation to a consignment that has been declared for duty purposes;

4. Whether, in the absence of compliance with such procedure, any liability attaches to the defendant;

5. Whether the defendant is liable to the plaintiff in respect of contents (that) became moribund as well as the customs clearance, storage charges and demurrage charges associated with the containers;

6. Whether the defendant is liable to the plaintiff for special damages in respect of cancelled orders and lost business;

7. In respect of all damages, the quantum of damages that may be awarded to the plaintiff, if any; and

8. What order is to be made as regards costs.

In my view, the issue that falls for determination in this trial, in the main, is whether or not the defendant's conduct was culpable under the lex Aquilia. If so, what damages did the plaintiff suffer?

I narrow down the issues in this manner as, in my view, resolution of issues one to four, as settled at the pre-trial conference, will not resolve the dispute between the parties.

Having listened to the evidence of the parties, it appears clear to me that while the declarator by HUNGWE J specifically dealt with the four containers in respect of which a dispute had been formally declared, his ruling, and that of the Supreme Court on the matter would bind the parties in the importation of similar chemicals and would thus have a direct bearing on the importation of the ten containers.

I also note that while the ten containers may not have been formally presented to the defendant for clearance, the parties were locked in a dispute over the four containers in respect of the duty payable, and, on a practical note, the defendant was most unlikely to accept duty at the lower tariff pending determination of the litigation that was then unfolding between the parties.

The parties are all familiar with the procedures that have to be observed in relation to the importation of products and an answer to this question will, in my view, not bring us nearer to the resolution of the matter than we were when we started off.

I further form the view that the plaintiff has not approached this court because the defendant allegedly did not clear the ten containers of the chemical. The dispute between the parties relates to the defendant's insistence on the incorrect rate of duty after the High Court ruling, and, the issue that arises, in my view, is whether such insistence, including the unsuccessful approach to the Supreme Court on the issue is culpable and renders the defendant liable to the plaintiff in delict.

I now return to the issues as I see them.

In my view, the plaintiff's claim could have been pleaded with greater clarity to reveal the plaintiff's cause of action against the defendant. I must confess, that, I am at a loss as to the cause of action that the plaintiff is raising against the defendant. I had hoped that the cause of action would become clear with the leading of evidence and the final submissions by counsel in the matter.

Unfortunately, it has not, as I shall show below.

The plaintiff has pleaded, in its declaration, that the defendant acted wrongfully against the plaintiff, leading to the plaintiff incurring certain losses.

Reading through the plaintiff's declaration, I discern three possible actions by the defendant that the plaintiff appears to be terming “wrongful”:

(i) Firstly, the plaintiff alleges, in paragraph 4 of the declaration, that the defendant acted wrongfully and unlawfully when it demanded duty for the first four containers at 25%.

(ii) Secondly, it is alleged, in paragraph 6, that the defendant acted wrongfully and unlawfully and with malice when it noted an appeal against the decision of this court.

(iii) Finally, the plaintiff alleges, in paragraph 7, that the defendant acted wrongfully by refusing to clear the ten containers on duty other than the erroneously calculated 25%.

As pleaded above, the plaintiff alleges wrongful action leading to an economic loss without grounding its claim in the lex Aquilia that requires a mental element in the form of negligence or dolus before liability can be founded.

It is my understanding of our law of delict that actions under the lex Aquilia are meant to compensate the plaintiff for the damages occasioned to him or her by the wrongful act attributable to the defendant's fault. Thus, for a successful prosecution of a claim under the action, a plaintiff must prove a wrongful act by the defendant, patrimonial or economic loss, and fault on the part of the defendant.

It is common cause that the plaintiff has not pleaded that the defendant acted negligently in the circumstances of this matter. No particulars of the negligence are pleaded. The plaintiff has not specifically pleaded that the defendant acted intentionally and that it intended to cause loss to the plaintiff by its actions.

It is trite, in my view, that in an action founded on the lex Aquilia, the mental element status of the defendant must be specifically pleaded so that the defendant knows the case that it has to meet. Lack of such particularity, in my view, is fatal to the plaintiff's claim as it does not disclose the plaintiff's cause of action.

On this basis alone, I would absolve the defendant from the instance.

However, I am somewhat handicapped by two events that did not occur in this matter:

(i) Firstly, the defendant did not except to the plaintiff's pleadings for the cause of action to be crystallized before the defendant pleaded thereto.

(ii) Secondly, the matter proceeded through a pre-trial conference where the parties appeared to have been agreed that what was being pleaded was the lex Aquilia and the real issue for determination was whether the defendant was liable to the plaintiff for the pure economic loss that resulted from the defendant's actions.

It is true, in practice, that evidence led at the trial to prove culpa under the lex Aquilia invariably proves the wrongfulness of the conduct: see Van Der Eeecken v Salvation Army Property Co and Another 2008 (4) SA 28 (T)…,.

However, the correct legal position, in my view, is that culpa, in the form of negligence or dolus, like wrongfulness, is an essential requirement for liability under the Aquilian action. While culpable conduct causing harm is not actionable unless it is also wrongful, conduct that is not negligently or intentionally caused but that results in harm is equally not actionable unless there was a duty to prevent the occurrence of harm to the plaintiff. Where the defendant owes the plaintiff no legal duty, there is no wrongfulness. This means that despite the existence of blameworthy conduct on his or her part, the defendant enjoys immunity against liability for damages resulting from such conduct.

I will therefore proceed to examine the evidence that was led at the trial to assess whether the evidence establishes both the culpa and the wrongfulness.

As indicated above, the plaintiff did not plead negligence. Similarly, the tenor of the evidence led at the trial was not suggestive of any negligent conduct on the part of the defendant.

The essence of Joseph Chikwana's evidence was to the effect that the defendant simply refused to release all the containers of chemicals on duty other than at the wrongly calculated 25%. He did not proceed to suggest that such conduct by the defendant in this regard was negligent in any respect.

In his evidence in chief, the plaintiff's main witness did not at all testify as to the defendant's state of mind in refusing to release the containers of the chemicals at 5% duty. It was only in answer to a question put to him in cross-examination that the witness was drawn into testifying that the actions by the defendant were malicious and deliberate although the plaintiff had no complaints to make against the employees of the defendant.

One clearly discerns a contradiction in the evidence so elicited from the witness.

It is common cause that the defendant acts though the agency of its employees. and, if the plaintiff had no complaints about the manner in which the defendant's employees had handled the matters, it is difficult to envisage in what way the defendant acted maliciously and intentionally against the plaintiff.

On the basis of the above, I would find that the plaintiff did not lead any evidence to show that the defendant's conduct, even if found wrongful, was accompanied by such a mental element as to find liability under the lex Aquilia.

In his written submissions, the plaintiff's counsel makes a sweeping statement to the effect that the conduct by the defendant was in breach of a clear statutory provision and that such breach was without just cause. Counsel proceeds to submit, that, at the very least, this constituted gross negligence.

With respect, I find myself unable to agree.

Firstly, I am not convinced that setting the tariff using an incorrect classification was breach of the duty imposed upon the defendant by statute. Secondly, I am not persuaded that making an error in calculating duty is per se gross negligence.

In any event, as discussed above, the plaintiff did not plead negligence and did not lead any evidence to reveal any negligent behaviour on the part of the defendant. It is therefore idle of counsel to make such a submission in the circumstances.

Again, on the basis that the plaintiff failed to lead any evidence upon which I can find that the defendant behaved towards the plaintiff with the requisite mental element to found liability under the lex Aquilia, I would absolve the defendant from the instance on this basis alone.

It appears to me that the plaintiff may have proceeded under the incorrect belief that wrongfulness is similar to and the same as culpa and that pleading wrongfulness on its own suffices to satisfy the requirements of the Aquilian action.

It is not.

The two are separate requirements that have to be satisfied in each suit although the evidence led to prove one may be used to prove the other. I can do no better than associate myself with the observations of SCOTT JA in Gouda Boerdery Bk v Transnet Ltd 2005 (5) SA 490 (SCA) when he had the following to say…,:

“It is now well established that wrongfulness is a requirement for liability under the modern Aquilian action.

Negligent conduct giving rise to loss, unless also wrongful, is therefore not actionable.

But, the issue of wrongfulness is more often than not uncontentious as the plaintiff's action will be founded upon conduct which, if held to be culpable, would be prima facie wrongful.

Typically, this is so where the negligent conduct takes the form of a positive act which causes physical harm. Where the element of wrongfulness gains importance is in relation to liability for omissions and pure economic loss. The inquiry as to wrongfulness will then involve a determination of the existence or otherwise of a legal duty owed by the defendant to the plaintiff to act without negligence: in other words to avoid negligently causing the plaintiff harm. This will be a matter for judicial judgment involving criteria of reasonableness, policy, and, where appropriate, constitutional norms.

If a legal duty is found to have existed, the next inquiry will be whether the defendant was negligent.

The test to be applied will be that formulated in Kruger v Coetzee, involving as it does;

(a) First, a determination of the issue of foreseeability; and

(b) Second, a comparison between what steps a reasonable person would have taken and what steps, if any, the defendant actually took.

While conceptually the inquiry as to wrongfulness might be anterior to the enquiry as to negligence, it is equally so that without negligence the issue of wrongfulness does not arise; for conduct will not be wrongful if there is no negligence.

Depending on the circumstances, therefore, it may be convenient to assume the existence of a legal duty and consider first the issue of negligence. It may also be convenient, for that matter, when the issue of wrongfulness is considered first, to assume for that purpose the existence of negligence.

The courts have, in the past, sometimes determined the issue of foreseeability as part of the inquiry into wrongfulness, and, after finding that there was a legal duty to act reasonably, proceeded to determine the second leg of the negligence inquiry, the first (being foreseeability) having already been decided.

If this approach is adopted, it is important not to overlook the distinction between negligence and wrongfulness.”…,.

Assuming that I have erred in finding that the plaintiff fatally failed to plead and prove culpability on the part of the defendant, I now turn to consider whether the conduct by the defendant was wrongful.

In my view, the issue of wrongfulness in this matter takes centre stage as the loss that the plaintiff seeks to be redressed is pure economic loss. There is thus no physical damage to the property of the defendant giving rise to the loss, which, historically, would have led to the conclusion that the action of the defendant was prima facie wrongful if it was culpably caused: see Gouda Boerdery Bk v Transnet Ltd 2005 (5) SA 490 (SCA).

The inquiry as to wrongfulness in situations where the plaintiff has suffered pure economic loss as occurred in this matter involves a determination of the existence or otherwise of a legal duty owed by the defendant to the plaintiff to act without culpa.

It has been held in a number of authorities, that, the inquiry into whether or not the defendant owed the plaintiff a legal duty will be a matter for judicial judgment involving criteria of reasonableness, policy, and, where appropriate, constitutional norms.

This has been a part of our law since the courts in this jurisdiction accepted that the Aquilian action was wide enough to apply to claims for pure economic loss.

Thus, in Zimbabwe Banking Corporation v Pyramid Motor Corp 1985 (4) SA 553 (ZSC)…, GUBBAY JA…, had this to say:

“There is no general principle of delictual liability for economic loss negligently caused. It must have been caused wrongfully as well as culpably. There must have been an infringement of a legally protected right, the determination of which requires the exercise of a judicial value judgment embracing all relevant facts, including matters of policy: see Administateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 833D-H. For whereas physical injury to person or corporeal property is prima facie unlawful, causing economic loss is not.”

In casu, it is my view that the plaintiff approached this matter without realizing that its claim called for more than evidence of what transpired between the parties.

Having approached the court for an order redressing pure economic losses, it fell upon the plaintiff to persuade the court to make a value judgment to the effect that the defendant owed the plaintiff a duty not to cause it loss through the incorrect calculation of duty.

This is a novel duty to which the Aquilian action has not yet been extended by our courts.

As such, great care had to be taken in leading evidence that would persuade the court to hold that the extension of the action to cover such incidences is proper and is in accordance with policy.

No evidence was led before me as to what a reasonable collector of revenue would have done in the circumstances and whether to hold the defendant liable in the circumstances of the matter will be promotive of any social or economic norm that is consistent with current policies on revenue collection.

Speaking for myself, I am reluctant to extend the action to hold liable a public body, like the defendant, for an error that occurs during the discharge of its statutory functions.

I am also reluctant to hold liable a defendant for pursuing a constitutional right in unsuccessfully noting an appeal to the Supreme Court as to do so might be to stifle, and, in some cases, completely negate such right.

But, these are just my views arrived at without the aid of argument from counsel.

In reaching this conclusion, I have been influenced by the remarks by GUBBAY JA…, in Zimbabwe Banking Corporation v Pyramid Motor Corp 1985 (4) SA 553 (ZSC)…, when he had this to say:

“Mr Chaskalson is, of course, correct in cautioning that, in determining whether any norm of behaviour causing economic loss should be characterised as wrongful, the adoption of a conservative approach is required: see the Lillicrap case supra at 500D-E and the authorities there-cited.

Certainly, there is need for 'care and circumspection' in the ascertainment of whether a particular type of action is one which will be confined within reasonable and manageable bounds and is not fraught with what aptly has been described as 'overwhelming potential liability'.

Each case must be assessed pragmatically on its own facts and merits, with primary weight being laid upon the policy of the law.

The Court must ask itself whether, paying due and proper regard to the notion of justice and the interests of the litigants balanced against the community as a whole, it is socially desirable to impose liability in the particular circumstances: see Tobacco Finance (Pvt) Ltd v Zimnat Insurance Co Ltd 1982 (3) SA 55 (ZH) at 61F-H.”

On the basis of the above, I would hold that the conduct complained of was not wrongful in the circumstances even if it was committed with the requisite culpability, which I have already found above not to have been proved.

In view of the finding that I make on the liability of the defendant, I do not think it is necessary that I make a finding on the quantum of damages sought by the plaintiff in this matter. However, in keeping with the practice of this court, I shall proceed to do so for the benefit of the Supreme Court in the event that my decision is appealed against.

It has been my finding above that the evidence of the plaintiff's two witnesses, in respect of the alleged loss, was inconclusive in that, under cross-examination, the witnesses admitted that the claims by the plaintiff had been calculated without taking into account certain exigencies and variables such as changing exchange rates and fluctuating costs of production. As such, it is my view that the amounts claimed by the plaintiff in its declaration are somewhat exaggerated and are not a correct reflection of the loss actually suffered by the plaintiff.

In the result, I make the following order:

1. The defendant is absolved from the instance.

2. The plaintiff shall meet the costs of the defendant.

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

Some day in or around October 2003, a businessman, who still believes in customer care, moved down the fuel queue that had formed at his forecourt to ensure that no one was jumping the queue. He would stop and chat with this or the other customer. He came across a white gentleman who was sitting in his car and awaiting his turn to have his car refueled. He spoke to this gentleman.

He went back to his manageress and asked who the gentleman was. He was told that it was the plaintiff's Managing Director. The plaintiff had an account with the service station.

The businessman went back and made a suggestion to the gentleman. The suggestion was well received. The parties parted company on this happy note. Each had an understanding of what had been discussed in the fuel queue.

The businessman is the defendant before me and the content of the suggestion that he made to the gentleman in the queue is the subject of the dispute that I have to determine.

On 30 October 2006, the plaintiff issued summons against the defendant claiming the sum of $77,206=48 together with interest thereon at the prescribed rate from the date of summons to date of judgment in full and delivery to it of 3390,5 litres of petrol and 6,462 litres of diesel.

The claim was accompanied by the usual prayer for costs of suit.

In its declaration, the plaintiff alleged that it had an arrangement with the defendant to draw fuel from the main tank at his service station. It further alleged that in or about November 2003, the defendant established a separate and different facility whereby the plaintiff could draw fuel from a reserve tank, which arrangement entailed the plaintiff paying for fuel in advance and the defendant storing the fuel for the plaintiff in his reserve tank. Finally, it was alleged, in the declaration, that, as at January 2006, the defendant held a deposit of $7,206,477 in respect of fuel to be drawn from the main tank and 3390,6 litres of petrol and 6462,02 litres of diesel in the reserve tank, which, despite demand, the defendant failed to avail to the plaintiff, prompting the plaintiff to approach the court.

The claim was defended.

In its plea, the defendant admitted that he had an arrangement with the plaintiff but averred that at all times the fuel in both tanks belonged to him and he did not owe the plaintiff fuel but cash balances in respect of each facility. In particular, the defendant denied that the reserve tank facility was exclusively for the plaintiff or that the plaintiff purchased the fuel stored in that tank in advance and in bulk. He further averred that the reserve tank was simply a preferential arrangement for account holders in the event that he did not have fuel in his main tank.

As to why the defendant could not supply the plaintiff with the fuel for which he held deposits, the defendant averred that he had been compelled by the National Task Force to sell all the fuel he had in his tanks to the public. The plaintiff had tried to fill drums with the fuel that was due to it, but, due to volatility of the period, this was not advisable.

Thus, at the pre-trial conference of the matter, the following issues were identified for trial:

1. Is the plaintiff entitled to specific performance, and, on what basis, and in what quantity?

2. What were the terms of the facility agreement between the plaintiff and the defendant?

3. Whether the defendant received oral or written directive from the Ministry of Industry and International Trade to sell the diesel and petrol that the plaintiff alleges it was holding for the plaintiff?

4. Whether the defendant requested the plaintiff to secure alternative petrol and diesel storage facilities to the facilities available at the defendant's service station?

At the trial of the matter, the plaintiff called four witnesses.

First to testify was Michael John Derry. At the time, he was the National Sales Manager for the plaintiff. His evidence was to the following effect:

The defendant approached him one day whilst he was in the fuel queue at the defendant's service station. The plaintiff was an account holder with the defendant. In terms of the arrangement between the parties, the plaintiff would deposit some money with the defendant and would then draw down fuel. When the defendant approached him in the queue, he suggested that the plaintiff could deposit a sum of money with the defendant who would then purchase fuel for the plaintiff when he purchased his own.

The witness told the plaintiff's Managing Director about this suggestion and an arrangement was then put in place.

When the defendant did not have fuel in his main tank, the plaintiff would then draw its own fuel from the reserve tank. He did not know the finer details of the arrangement as this was handled by the administration section of the plaintiff. His understanding was that, in the second arrangement, the plaintiff purchased its own fuel which was stored by the defendant in a separate tank. When there was no fuel in the main tank, the plaintiff would then draw fuel from this side tank, which the plaintiff took to be its fuel.

The witness impressed me as honest and reliable. He was not shaken under cross-examination and I shall rely on his evidence to the extent that it reveals that an offer to treat was made by the defendant to the plaintiff.

The second witness to testify on behalf of the plaintiff was Kevin James Shadwell. He is the Managing Director of the plaintiff. His evidence was to the following effect:

Historically, the plaintiff maintained an account with the defendant in terms of which the plaintiff would pay a deposit down and then draw fuel against the deposit. Thereafter, Mike Derry approached him and advised him of the alternative arrangement that had been suggested by the defendant. He understood that this arrangement would guarantee supply.

Under normal circumstances, the plaintiff would continue to draw fuel from the main tank under the historic arrangement. Under the second arrangement, the defendant was offering the plaintiff a reserve tank in which the plaintiff would store its fuel and from which the plaintiff would only draw fuel in the event that there was none in the main tank.

He gave the approval for the arrangement and instructed the administration office to put the arrangement in place.

Thus, according to his understanding, while the plaintiff deposited for fuel in the main tank, it purchased outrightly the fuel in the reserve tank.

The plaintiff was under the impression that the fuel in the reserve tank was exclusively its, and, if there was more fuel in the tank than the plaintiff had purchased, this did not concern the plaintiff.

The witness did not personally discuss the details of the second arrangement with the defendant.

Sometime in August 2006, the plaintiff received a call from the defendant that there was no more fuel and that the fuel that had been stored in the reserve tank had been sold to the public.

The witness held two meetings with the defendant over the issue. The plaintiff could not collect fuel that was due to it in drums as it was seen as inappropriate at the time as there was a critical shortage of fuel countrywide.

At some stage, the plaintiff furnished the defendant with a letter authorizing the defendant to sell the fuel in the reserve tank to the public. The letter was meant to protect the defendant from the task force so that he would not be seen to be hording fuel in times of shortages. The plaintiff's understanding was that the fuel, once sold to the public at the instance of the task force, would be replaced by the defendant.

At no stage did the parties discuss the issue of storage charges for the fuel in the reserve tank.

In my view, the witness gave his evidence well. He was clear as to the understanding that the plaintiff had of the two arrangements that it had with the defendant. He was also clear that he personally got this understanding from the report that he received from the first witness and the subsequent conduct of the parties. At no stage did he personally discuss the terms of the agreement with the defendant. At no stage did either party seek to keep a contemporaneous record of what had been agreed upon.

The third witness for the plaintiff was Ephraim Kundishora Mawonedzo. He was employed by the plaintiff as the Administration and Human Resources Manager.

In November 2004, he was approached by the plaintiff's Managing Director who told him that the plaintiff had agreed on a better deal with the defendant that would cushion the plaintiff in times of fuel shortages. The Managing Director informed him that the offer for the better fuel deal was made to Michael John Derry by the defendant. The witness then made out a cheque to the defendant. He gave this to Dorcas, the manageress of the defendant's service station.

The cheque was sufficient to cover 5,000 litres of petrol and 5,000 litres of diesel.

When making the payment to the defendant he communicated that the cheque was for the reserve facility. Thereafter, the facility was put in place.

Sometime in April/May 2005, there was a critical shortage of fuel. The defendant expressed concern about keeping large quantities of fuel in the reserve tank. The witness then wrote a letter, addressed to 'whom it may concern', allowing the defendant to sell the fuel stored on behalf of the plaintiff in the reserve tank to the public. The letter was meant to protect the defendant from the task force. The witness was never told that the task force on fuel had visited the defendant's service station and had ordered that he disposes of all the fuel that he was holding in his tanks. The defendant should still have left enough fuel in his tanks to service the needs of the plaintiff as such fuel was on reserve.

In May or June 2005, he ran around trying to get clearance from the Ministry of Energy and from the police to allow the defendant to store the plaintiff's fuel in bulk. He was not successful.

When he returned to the defendant's service station, he was advised that all the fuel had been sold.

The second witness and he arranged to meet with the defendant who promised to give them fuel when next he received a delivery.

At one stage, the witness heard that the defendant was once again dispensing fuel from his station. When he approached the defendant for fuel, as per the promise, the defendant denied owing the plaintiff fuel but money.

The defendant then tendered a cheque to the plaintiff in full and final settlement of the balance owing. The plaintiff did not accept the cheques which it sent back to the defendant.

Regarding whether it would be impossible for the defendant to procure the fuel that the plaintiff was claiming, the witness was of the view that the defendant could easily do so as he is a fuel dealer and has access to fuel suppliers.

The plaintiff had dealt with the defendant for years without any problems, which is why the arrangement between the parties was not reduced to writing.

Under cross examination, the witness admitted that he was not party to the negotiation of the arrangements between the plaintiff and the defendant but was informed of the details of the arrangement by his Managing Director.

In my view, the witness was being truthful in his evidence. He was not shaken in cross–examination and I have no reason to disbelieve him.

After the evidence of Ephraim Kundishora Mawonedzo, the plaintiff called one Kedius Mpiningo. At the time of testifying, he was employed by the plaintiff as a Human Resources and Administration Officer, working directly under the last witness. His duties included keeping records and allocating fuel to the plaintiff's vehicles.

He joined the plaintiff on 15 July 2005, well after the dispute between the parties had arisen.

He was made privy to the details of the arrangement between the parties by his immediate boss and from the records that he found in the office.

The witness gave his evidence well. To the extent that he narrated to the court what he had been made privy to, I have no reason to disbelieve his evidence. It however does not assist me much in establishing what it is that the parties had agreed upon in the first instance…,.

After leading evidence from Kedius Mpiningo, the plaintiff closed its case, prompting counsel for the defendant to apply for the defendant to be absolved on the basis that the plaintiff had failed to lead evidence to establish the terms of the arrangement between the parties that it was relying on.

The application was resisted, and, after hearing submissions, I declined the application and indicated that my reasons would appear in the main judgment.

In declining the application for absolution from the instance, I was guided by the sentiments expressed by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) to the effect that if the plaintiff has made out a case that the defence is something peculiarly within the knowledge of the defendant, justice demands that the defendant be placed on his defence.

In my view, since the alleged agreement between the parties was oral, and the parties had related under the agreement for a period, the defendant had to give evidence on his understanding of the terms of the arrangement between the parties, and, if his understanding coincided with that of the plaintiff in a material respect, then, the agreement between the parties would have been established.

The defendant gave evidence.

He used to run the service station in Hatfield known as H.E.R. Bonanza. One day, he was walking up and down the fuel queue that had formed at the service station. He saw the plaintiff's second witness in the queue and stopped to talk to him. When he had ascertained the identity of the plaintiff's second witness from his manageress, he approached him again and asked him if he would like to open an account with the defendant to save some time in the queue. The witness promised to get back to him. The plaintiff's representatives came back a few days later and an account was opened for them.

The defendant then detailed his understanding of how the arrangement between the parties would work. In his view, the arrangement was an advance deposit system where the plaintiff would pay, in advance, a deposit for fuel and against which deposit it would then drawdown fuel.

Later, the defendant decided that one of the pumps at the service station would service commuter buses, one would service the public, while one was reserved for account holders and friends. This was referred to as the reserve facility.

The reserve facility was set up due to shortages in the supply of fuel. The plaintiff and other account holders were asked to pay a separate deposit for the use of this reserve facility. The facility allowed them to draw fuel from the reserve tank in times of shortages.

His understanding was that the fuel was always his and did not belong to the plaintiff after a deposit for such fuel was paid. He was holding cash and not fuel on behalf of the plaintiff. The plaintiff did not pre-pay for the fuel.

The defendant is a confident man. He gave his evidence confidently. He clearly was mistaken when he testified that the man he spoke to in the fuel queue on the forecourt of his service station was the plaintiff's Managing Director. He spoke to Michael John Derry. Despite this mistake in his evidence, I found him generally honest and easy to believe.

The defendant called Dorcas Sibindi, the manageress at the service station during the relevant time. Her evidence was brief and concise.

She knew the second and third plaintiff's witnesses as the plaintiff was one of the account holders at the service station. The station operated three tanks; one for commuter buses, one for the public, and another for account holders.

In operating its account, the plaintiff would issue cheques in favour of the defendant and she would deduct from that deposit each time the plaintiff drew down fuel. The parties operated two schemes. The main tank was used when there were no queues on the forecourt. The reserve tank was used when queues had formed on the forecourt for the preferred customers to avoid the queues.

The plaintiff paid a deposit to the defendant for both schemes and drew down against such deposits. The defendant never kept any fuel exclusively for the plaintiff.

The witness was not as forthcoming in her responses to questions put to her under cross-examination, leaving me with the impression that she was not telling me the entire truth.

For instance, she could not remember how the letter authorizing the defendant to sell all of the plaintiff's fuel got into the file she kept for the plaintiff yet she managed the account and kept the file. She denied any memory of the letter and would have me believe that she merely saw it in the file at the time she handed over the file to the defendant in preparation for the litigation.

She also denied having spoken to Kedius Mpiningo on the phone about the details of the account.

I have found Kedius Mpiningo to be generally truthful and reliable, and, in my view, he would not have had any reason to lie about the telephone call, which is innocuous by all regards.

On the basis of the above, I shall only rely on the evidence of this witness where it is corroborated by some other reliable testimony.

After the testimony of Dorcas Sibindi, the defendant closed his case.

The issue that falls to be determined in this matter is, in my view, simple. It is to establish whether the terms of the agreement that the parties entered into entitles the plaintiff to delivery of fuel in the volumes claimed.

The issue is captured in very broad terms in the second issue settled at the pre-trial conference.

It is trite that having come to court to assert and enforce a contract, the plaintiff bore the onus of proving not only the terms of such a contract, but breach of a material term thereof.

The plaintiff asserts that the second arrangement was a reserve facility in terms of which it pre-purchased fuels from the defendant who was obliged to keep such litreage in reserve for the plaintiff.

This is the case that the plaintiff has brought to court.

Counsel for the plaintiff submitted, that, on the evidence led, I must find that the parties reached consensus ad idem on the above terms when the defendant met with Michael John Derry in the fuel queue.

I find myself unable to agree with that submission.

I have accepted it, on a balance of probabilities, that, the defendant met with Michael John Derry and not with Kevin James Shadwell on the day the proposal was put to the plaintiff to set up a reserve facility. The testimony of Michael John Derry as to what was discussed during this brief and impromptu meeting is quite clear and concise in this regard.

It is important, in my view, that I analyze the evidence of Michael John Derry in this regard critically for it forms the offer that was communicated to the plaintiff.

In the words of Michael John Derry, the defendant suggested that the plaintiff could put down a whole lot (deposit a sum of money with the defendant), who would then purchase fuel for the plaintiff when he purchased his own. This is what Mr. Derry heard the defendant to be saying.

The issue remains to be determined whether the offer by the defendant was understood and communicated in the terms in which it was made.

It is pertinent, in my view, to note, at this stage, that, no further discussion was held between Michael John Derry and the defendant on where and how this fuel would be stored for and behalf of the plaintiff and how the plaintiff would take delivery of same.

It s not in dispute that Michael John Derry did not accept the offer that the defendant had put to the plaintiff. He took the offer to Kevin James Shadwell, the plaintiff's Managing Director.

When he received the offer, Kevin James Shadwell understood the defendant to be offering them an alternative facility to the one existing. He understood that this arrangement would guarantee supply.

Under normal circumstances, the plaintiff would continue to draw fuel from the main tank under the historic arrangement. Under the second arrangement, the defendant was offering the plaintiff a reserve tank in which the plaintiff would store its fuel and from which the plaintiff would only draw fuel in the event that there was none in the main tank.

This is the offer that he gave instructions to the plaintiff's administrative staff to accept.

I have observed above that Kevin James Shadwell gave his evidence well but that he did not personally discuss the terms of the new “deal” with the defendant. He took his understanding from Michael John Derry and instructed that the offer be accepted as he understood it.

It is trite that accepting an offer that has not been made does not bring into being a contract: see Couve and Another v Reddot International (Pty) Ltd and Others 2004 (6) SA 425 (W) Bourbon-Leftley en Andere (Landbous) BPK 1999 (1) SA 902 (C).

A contract is brought into being by the acceptance of a matching offer.

It thus remains for me to establish whether the plaintiff has established that the offer that it accepted was the one made by the defendant.

Again, words used by the defendant become of paramount importance in this matter.

The defendant testified that the reserve facility was set up due to shortages in the supply of fuel. The plaintiff and other account holders were asked to pay a separate deposit for the use of this reserve facility. The facility allowed them to draw fuel from the reserve tank in times of shortages.

His understanding was that the fuel was always his and did not belong to the plaintiff after a deposit for such fuel was paid. He was holding cash, and not fuel, on behalf of the plaintiff and all other account holders. The plaintiff did not pre-pay for the fuel.

In such circumstances, can I say that there was a meeting of the minds of the parties sufficient to establish the terms and conditions of the agreement that the plaintiff alleges and relies on?

I think not.

This was an arrangement that was entered into on the basis of a single chance discussion between two persons who were not directly involved in the implementation of the arrangement.

The defendant understood he was simply offering a reserve tank facility to the plaintiff. The plaintiff understood it was being offered a pre-paid fuel facility. No contemporaneous document of the agreement was kept by either side and the misunderstanding was perpetuated over a period, giving each side comfort in the belief that its understanding of the arrangement was the one more from the passage of time and less from a shared intention and the observance of the requisite legal formalities.

It is trite, that, in actions based on contract, the party alleging the contract must be able to establish, by evidence, the communication of an offer and acceptance of that offer. This is what establishes the contract and a cause of action for the plaintiff.

Where the defendant denies making the offer alleged by the plaintiff, the onus rests on the plaintiff to prove, by his conduct, that the defendant made the offer.

Where, however, the evidence adduced by the plaintiff regarding the defendant's conduct is consistent with either of the party's understanding of the agreement, as occurred in this matter, the conduct of the defendant cannot act as proof of the common intention of the parties.

I have not been able to establish, from the evidence of the plaintiff, any conduct on the part of the defendant consistent only with and corroborative only of the plaintiff's assertions. To the contrary, the parties maintained the two facilities and the plaintiff drew down fuel from the reserve tank when there was no fuel in the main tank. According to the plaintiff, when doing so, it was drawing down on its fuel reserves. According to the defendant, the plaintiff was simply drawing down fuel in accordance with the second account facility that gave it preference over members of the public and those who only had access to the main tank.

On the basis of the foregoing, I am unable to find for the plaintiff, as, in my view, insufficient evidence has been led to prove the terms of the second facility.

In the result, I make the following order:

1. The defendant is absolved from the instance.

2. The plaintiff shall pay the defendant's costs.

SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court sitting at Harare, handed down on 12 December 2016.

In the judgment, the court a quo found the first three appellants guilty of murder and the fourth appellant guilty as an accessory after the fact, of public violence.

The first three appellants were sentenced each to 20 years imprisonment.

The fourth appellant was sentenced to a fine of $500, or, in default, three months' imprisonment with a further three years imprisonment suspended on conditions.

The appeal is against the convictions and the sentences.

Background Facts

On 29 May 2011, a political party, “the MDC-T”, held a political gathering at a shopping center in one of the suburbs in Harare. The purpose of the gathering was to celebrate the party's T-shirt visibility programme.

A group of police officers, led by the deceased, was dispatched to disperse the gathering which was deemed illegal.

When ordered, by the police officers, to disperse, the group did not resist but pleaded with the police to first complete their food preparations, which included a barbecue, before they could disperse. The police agreed to this arrangement and left.

Reports later reached the police that the group had thereafter relocated to another shopping centre in the same suburb. The police, once again, led by the deceased, reacted and followed to the new location.

When the officers tried to disperse the gathering at the new location, they were met with stiff resistance. In the melee that ensued, the deceased was stoned by an unidentified assailant. He fell down onto the tarmac. He died as a result of a severe injury to his head which depressed his skull and caused damage to his brain.

On 12 March 2012, the appellants, and 25 others, were arraigned before the court a quo facing one count of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and, alternatively or concurrently, with public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act.

After a protracted trial lasting over four years, the appellants were duly convicted and sentenced as detailed above.

The court a quo found that the first three appellants had, on 29 May 2011, unlawfully and with actual intent to kill, murdered the deceased by hitting him on the head with a brick, causing injuries from which he later died.

It found the fourth appellant guilty as an accessory after the fact to the crime of public violence, which it held to be subsumed in the crime of murder.

The fourth appellant had ferried the first two appellants from the scene of the crime in the vehicle he was driving.

In finding the first three appellants guilty of murder, the court was clear in its mind that the guilt of the accused persons hinged on whether or not the appellants participated in the commission of the crime, either directly or by association. In particular, it was its view that the case against the three appellants hinged on the applicability of the common law doctrine of common purpose, which it dealt with extensively, before convicting the appellants as detailed above.

The Appeal

As indicated above, the appellants were aggrieved by the convictions and sentences. In noting this appeal, they raised six grounds. I cite them here in full:

“1. The court a quo erred and seriously misdirected itself when it failed to properly apply the law and discharge the appellants as it was obliged to at the close of the State's case in terms of section 198(2) of the Criminal Procedure and Evidence Code, when no evidence justifying their placement on their defence had been led, and, in doing so, denied them a fair trial with the result that the conviction and sentence must be vacated.

2. The court a quo further erred and misdirected itself in finding the appellants guilty on the basis of the doctrine of common purpose, when, in law, the doctrine is no longer part of our law; the criminal law of Zimbabwe, having been codified in the Criminal Law Codification and Reform Code, which specifically outlaws Roman-Dutch Criminal Law.

3. The court a quo further erred and misdirected itself when it convicted the fourth appellant as an accessory after the fact to the crime of public violence when there is no actual perpetrator convicted of public violence.

4. The court a quo further erred and misdirected itself when it failed to find, as an extenuating circumstance, the fact that none of the appellants were shown to have directly participated in the melee that resulted in the deceased's death, thus reducing their moral blameworthiness.

5. Taking into account the full circumstances of the case, the court a quo's sentence of 20 years imprisonment induces a sense of shock in its excessiveness.

6. The court a quo erred and misdirected itself when it suspended a portion of the sentence on wide incompetent terms unrelated to the crime under which the appellant was convicted.”

The Issues

The issues that fall for determination in this appeal are interwoven.

The first ground of appeal argues that the court a quo erred in failing to acquit the appellants at the close of the State case when there was no evidence justifying the continuation of the trial beyond that point.

This seemingly raises the issue whether the court a quo erred as alleged.

I use the word seemingly deliberately. This is so because of the settled position at law, that, failure to discharge an accused person at the close of the State case can only sustain an appeal where it is found that at the close of the State case there was no evidence justifying a conviction and the defence case furnished no such proof.

The position, first debated in the controversial case of Kachipare v S 1998 (2) ZLR 271 (S), has gained traction and is accepted as the correct statement of our law: see S v Hunzvi 2000 (1) ZLR 540 (SC).

It has occurred to me that the rule in Kachipare v S 1998 (2) ZLR 271 (S) can be understood in two distinct senses:

(i) In the one, it renders incompetent and unsustainable, as a ground of appeal, one that simply alleges a failure by the lower court to acquit the appellant at the close of the State case without further alleging that there was no defence evidence proving guilt.

In this sense, it is an instruction to appellants not to seek to rely on the bare allegation that at the close of the State case there was insufficient evidence. The ground of appeal must, of necessity, attack the totality of the evidence led in the trial.

(ii) In the other, it directs the Appellate Court determining the question raised by such a ground to also consider the evidence led in the defence case before upholding or dismissing such a ground.

It is however not necessary that I debate to finality which of the two senses the court in Kachipare v S 1998 (2) ZLR 271 (S) intended. For the purposes of determining this appeal, I will assume it is the latter.

In view of the fact that the court a quo relied on the common law doctrine of common purpose to place the appellants, and others, on their respective defences, and, in convicting the appellants at the end of the trial, it is only logical that I deal, firstly, with whether or not the common law doctrine of common purpose was, at the material time, part of the Zimbabwean criminal law.

This is the issue that arises from the second ground of appeal.

Depending on my findings on the above issue, I will proceed to determine whether there was sufficient evidence against the appellants to justify the continuation of their respective trials beyond the close of the State case on the basis of the applicable law. This will address the issue that arises from the first ground of appeal.

The issue relating to the propriety of the sentences imposed on the appellants shall thereafter be determined, and only to the extent that this becomes necessary.

I have thus set up three issues which I now deal with seriatim. These are:

1. Whether, at the material time, the common law principle of common purpose was part of the Zimbabwean criminal law;

2. Whether, at the close of the State case, there was evidence justifying the continuation of the trial; and

3. Whether the sentences imposed on the appellants are severe and induce a sense of shock.

The Law

Was the common law doctrine of common purpose part of the Zimbabwean criminal law at the material time?

The criminal law of Zimbabwe was codified by the Criminal Law (Codification and Reform) Act [Chapter 9:23], “the Code”. The Code was promulgated in 2005 and came into force on 1 July 2006.

The purpose of the codification was partly to bring together, under one statute, the main aspects of the criminal law that were hitherto fragmented, and, partly, to reform and improve on the criminal law. This explains the lengthy and double-barrelled title of the Code: see Commentary on the Criminal Law (Codification and Reform) Act [Chapter 9:23] by PROFESSOR G FELTOE…,.

The Criminal Law (Codification and Reform) Act (the Code) therefore not only systematically arranged the existing material on criminal law conveniently under one legislation but also amended and modified the law.

Whilst the codification of the law brought with it convenience, the reform had wide-reaching ramifications. These ranged from the cosmetic, such as changing the nomenclature for some common law crimes, to the radical and fundamental. It changed the source of criminal law and supplanted itself and other statutes as the predominant source of the criminal law in the jurisdiction.

It appears to me, that, it was the clear intention of the law makers to make the Criminal Law (Codification and Reform) Act (the Code), and other statutes, the sole sources of the criminal law in the jurisdiction after the fashion of the Napoleonic and other civil law penal codes. This it sought to achieve through the cumulative effect of the provisions of sections 3 and 9 of the Code.

Section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides that:

“3. Roman-Dutch criminal law no longer to apply

(1) The non-statutory Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on 10 June 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies, or repeals that law.

(2) Subsection (1) shall not prevent a court, when interpreting any provisions of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of -

(a) The criminal law referred to in subs (1); or

(b) The criminal law that is or was in force in any country other than Zimbabwe.”

It further appears to me that the language used in the section was deliberately wide to oust as much of the common law as is possible and was intended to make the Criminal Law (Codification and Reform) Act (the Code), and other statutes, the predominant sources of the criminal law in this jurisdiction with the common law providing a fall-back position to avoid any possible gaps in the law.

Thus, to widen the scope of its application, and, contrary to the general principle of interpretation of statutes that holds that statutes can only oust the application of the common law expressly and in clear language, section 3 of the Criminal Law (Codification and Reform) Act (the Code) permits and legitimizes the ousting of common criminal law by implication: see S v Matare 1993 (2) ZLR 88 (SC).

Section 9 of the Criminal Law (Codification and Reform) Act (the Code), which anchors the legitimacy of any criminal conviction and penalty in this jurisdiction provides that:

“9 Liability for criminal conduct

A person shall not be guilty of or liable to be punished for a crime unless -

(a) The crime is defined by this Code or any other enactment; and

(b) The person committed the crime or was a party to its commission as provided in this Code or in the enactment concerned; and

(c) His or her liability is based upon voluntary conduct; and

(d) Subject to subs (5) of section seventeen, the person engaged in the conduct constituting the crime with any of the blameworthy states of mind referred to in sections thirteen to sixteen of this Code or any other enactment may require; and

(e) His or her liability is based upon unlawful conduct, that is upon conduct for which there is no lawful excuse affording that person a complete defence to the criminal charge, whether in terms of Chapter XIV or otherwise.”

I digress briefly to note that the position I have detailed above held possibly only up to 2013 when the new Constitution was adopted. I say so advisedly because section 89 of the Constitution, which was enacted after the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides that:

“89 Law to be administered

Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Cape of Good Hope on 10 June 1891, as modified by subsequent legislation having in Zimbabwe the force of law.”

There is therefore some scope to argue, that, through the provisions of section 89 above, the Constitution has reinstalled, for all purposes and for all laws, including the criminal law, the Roman-Dutch common law as a source of law. Put differently, there is scope to argue that the provisions of section 89 of the Constitution have clouded and rendered ambiguous the language of section 3 of the Criminal Law (Codification and Reform) Act (the Code), which, before the enactment of the Constitution, was clear and required no interpretation.

I remain of the above view notwithstanding, that, the repealed Constitution had a similarly worded section 89 on the law to be administered by the courts.

The law in force in the Cape of Good Hope on 10 June 1891 or Roman-Dutch common law, as it is appropriately called, was the applicable law together with subsequent legislation modifying the common law.

The Criminal Law (Codification and Reform) Act (the Code), having effect on a date subsequent to the adoption of the repealed Constitution, was permissible “subsequent legislation” modifying the common law.

In summary, therefore, the law of common purpose has seen major changes, in 2006 when the Criminal Law (Codification and Reform) Act (the Code) took effect, possibly in 2013 when the Constitution was adopted, and, in 2016, when section 196 of the Criminal Law (Codification and Reform) Act (the Code) was amended.

Quite apart from the fact that we did not have the benefit of researched argument from counsel on it, this issue is not relevant for the determination of this appeal.

This is so because the material date in this appeal is 29 May 2011 - which fell well before the adoption of the Constitution.

I merely flag the possible impact of section 89 of the Constitution on section 3 of the Criminal Law (Codification and Reform) Act (the Code) for law development purposes.

The issue illustrates how complex the determination of the applicable criminal law in any case after the codification of the criminal law may become and how it would appear that the codification and reform of the criminal law has created an un-intended minefield for the unwary.

Returning to the issue under discussion, it is common cause that the material date in this appeal is 29 May 2011. This was the date of the commission of the crime.

Section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) applied.

Its language is clear and admits of no doubt. It therefore requires no interpretation.

To establish whether or not the common law principle of common purpose was applicable at the material time, I must perforce look to the text of the Criminal Law (Codification and Reform) Act (the Code) to establish whether or not the Code had, at that time, expressly or impliedly enacted, re-enacted, amended, modified or repealed the principle under challenge. If it had dealt with the principle in any manner as detailed in section 3 of the Criminal Law (Codification and Reform) Act, then, the common law principle was no longer applicable. The reverse would also hold.

What then is the common law doctrine of common purpose?

It is a principle that deems the participation of two or more persons in the commission of a crime where the two or more persons associate with a common intent to commit the crime and one of them does commit the crime. It thus provides for co-perpetrators of crime with a common intent. In essence, the doctrine provides, that, if two or more people act together in pursuance of a common intent, every act done by one of them in furtherance of that common intent is deemed, at law, to be the act of them all: see Macklin, Murphy and Others (1838) 168 ER 1136; and Chauke v S 2000 (2) ZLR 494 (S).

The common law doctrine of common purpose has a dragnet effect. This is self–evident. As the head-note to S v Safatsa 1998 (1) SA 869 AD has it:

“The principle applicable where there is shown to have been a common purpose is that the act of one participant, in causing the death of the deceased, is imputed, as a matter of law, to the other participants (provided, of course, that the necessary mens rea is present).

A causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved to sustain a conviction of murder in respect of each of the participants.”

When the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) was enacted, it provided, in section 196, for the liability of co-perpetrators who associate with each other with the intention that each or any of them shall commit any crime.

Broadly, this provision re-enacted the essence of the common law doctrine of common purpose.

In terms of section 3 of the Criminal Law (Codification and Reform) Act (the Code) as detailed above, the direct application of the common law doctrine of common purpose, in establishing the criminal liability of accused persons at the material time, was, therefore, ousted by the enactment of section 196 of the Criminal Law (Codification and Reform) Act (the Code).

The criminal liability and punishment for two or more people who allegedly acted with a common intent at the time could only be imposed in accordance with the provisions of the Criminal Law (Codification and Reform) Act (the Code).

On the basis of the above, it is my specific finding, that, at the time the appellants were charged with the crimes of murder and/or public violence, the common law doctrine of common purpose was not applicable in this jurisdiction. The then section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) was the applicable law.

Before I proceed to analyse the decision a quo, I wish to comment on the submission by counsel for the respondent, that, the common law doctrine of common purpose is still applicable in our courts as this Court has applied it in two instances after the promulgation of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ( the Code). Reference, in this regard, was made to the decisions of this Court in (1) Vusimuzi Moyo (2) Khulekani Nkomo v S SC37-13 and Ncube v S SC58-14.

As indicated above, the law appears to be in flux in the wake of the adoption of the Constitution. The critical factor, in my view, is the date when the alleged crimes were committed.

More importantly, though, I am unable to find a discussion of section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in either of the two cases.

I do not, therefore, hold the two cases as authority for the proposition that the common law doctrine of common purpose was the applicable law at the time the crimes alleged against the appellants herein were committed.

Analysis

In placing the appellants, and others, on their respective defences at the close of the State case, the court a quo had this to say:

“As I have stated elsewhere in this judgment, the State case is based on the common law doctrine of common purpose or conspiracy to commit a crime which has now been codified under section 188 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides that:

“(1) Any person who enters into an agreement with one or more other persons for the commission of a crime in terms of this Code or any other enactment:-

(a) Intending, by that agreement, to bring about the commission of the crime; or

(b) Realizing that there is real risk or possibility that the agreement may bring about the commission of a crime…,.”

The court a quo proceeded to refer to case law and legal texts on the common law doctrine of common purpose before stating, as the basis of its decision, that:

“…, anyone who is shown to have associated himself or herself, at the material time, with the group that eventually killed the deceased, in the process of resisting police orders to disperse, has a case to answer.”

In convicting the appellants, the court a quo applied the same law that it had applied in dismissing the application to discharge the appellants at the close of the State case.

It applied the common law doctrine of common purpose.

The provisions of sections 3 and 9 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) were not drawn to its attention and were therefore never considered by it.

The error that the court a quo fell into is self-evident.

It applied the wrong law in establishing whether or not the appellants had participated or associated themselves with the commission of the crime in such a manner as to attract criminal liability. It applied the common law doctrine of common purpose instead of finding the liability of the appellants on the basis of the provisions of section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) as it then was.

Clearly, but again in error, the court a quo was of the view, that, at the material time, the Criminal Law (Codification and Reform) Act (the Code) and the common law were of equal and interchangeable application.

They were not.

I say so, because, having found that the common law principle of common purpose had been codified in section 188 of the Criminal Law (Codification and Reform) Act, which provides for conspiracy, erroneous on its own, the court a quo was of the view that it could then revert to the common law principle of common purpose and apply it directly to the facts of the matter that was before it.

It could not.

The intention of the law makers, in enacting the Criminal Law (Codification and Reform) Act (the Code) appears to me to have been quite clear.

Once a court finds that the common law has been enacted, re-enacted, modified, or repealed in the Criminal Law (Codification and Reform) Act, the Code takes over and becomes the sole source of the law and the provisions of the Criminal Law (Codification and Reform) Act become exclusively applicable, with precedent only acting as a guide in interpreting the provisions of the Code.

Thus, even assuming for a moment that conspiracy and the doctrine of common purpose are the same, as noted above, a finding by the court a quo that the doctrine of common purpose had been provided for under the Criminal Law (Codification and Reform) Act (the Code) as “conspiracy” would have debarred it from further proceeding to apply the common law principle directly.

This was the essence of the provision of section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) at the material time as discussed above.

Again, and quite erroneously, the court a quo based its application of the common law doctrine of common purpose on the codification of conspiracy. It was of the view that the two are one and the same concepts both under the Criminal Law (Codification and Reform) Act (the Code) and at common law.

They are not.

It is, however, not necessary that I burden this judgment with a discussion of the differences between the two concepts. Suffice it to say that they are provided for separately in the Criminal Law (Codification and Reform) Act (the Code) and have different requirements.

On the basis of the above, I am compelled to find, that, the court a quo misdirected itself, and gravely so, in finding the appellants guilty, as it did, on the application of a law that was not applicable in this jurisdiction at the time of the commission of the crimes with which the appellants were charged.

The conviction of the appellants cannot stand and must be set aside.

This, however, does not entitle the appellants to their acquittal for I must now turn to consider whether the appellants were guilty as charged on the basis of the provisions of section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), as it then was - the law that the court a quo ought to have applied.

Whether at the close of the State case there was evidence justifying the continuation of the trial

Section 196 of the Criminal Law (Codification and Reform) Act (the Code) itself has seen some major changes since the promulgation of the Code. These changes have seen a progressive narrowing down of the applicability of the common law doctrine of common purpose.

The original section 196 of the Criminal Law (Codification and Reform) Act, when the Code was enacted, was repealed and replaced in 2016 through the provisions of the General Laws Amendment Act, 2016. This amendment took effect on 1 July 2016.

Notwithstanding that the trial of this matter was concluded in 2016, after the amendment had taken effect, the applicable law in the trial of the appellants remained the law that was in force in 2011 when the crimes were allegedly committed. This is so because of the hallowed principle of our law that guards against the retrospectivity of statutes in general and of crimes in particular.

The changes in the law may explain the joint, but erroneous, submission by both counsel before us, that, the Criminal Law (Codification and Reform) Act (the Code) did not provide for instances that fell to be determined under the doctrine.

It does, and, at the material time, it did.

At the material time, section 196(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provided as follows:

“196 Liability of co-perpetrators

(1) Subject to this section, where -

(a) Two or more persons knowingly associate with each other with the intention that each or any of them shall commit or be prepared to commit any crime; and

(b) Any one of the persons referred to in para (a) ('the actual perpetrator') commits the crime; and

(c) Any one of the persons referred to in para (a) other than the actual perpetrator ('the co-perpetrator') is present with the actual perpetrator during the commission of the crime; the conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.”

The entire section, as cited above, was, in 2016, repealed and replaced by a new section that deals with a different subject matter. A new section, section 196A, was inserted to deal with the liability of co-perpetrators who knowingly associate for common purpose of committing a crime or crimes. It provides as follows:

“196A Liability of co-perpetrators

(1) If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit or the knowledge that it would be committed, or the realization of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the co- perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

(2) The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they -

(a) Were present at or in the vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or

(b) Were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or

(c) Engaged in any criminal behavior as a team or group prior to the conduct which resulted in the crime for which they are charged.”

As indicated above, section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not have retrospective effect and is of no application to the facts of this appeal.

Accepting then, as we must, that, at the material time, the common law principle of common purpose had been re-enacted with modification that restricted its application; the liability of each accused person stood to be proved on the basis of the provisions of section 196 of the Criminal Law (Codification and Reform) Act (the Code) as it then was.

Principally, the State had to lead evidence tending to prove;

(i) Firstly, that the appellants knowingly associated with the person who killed the deceased;

(ii) Secondly, that such association was with the intention that each or any of them would kill or be prepared to kill the deceased; and

(iii) Thirdly, that the appellants were present with the actual perpetrator when the fatal blow was delivered.

It is, however, common cause that the scene of the crime was a busy shopping centre where there was a beer outlet, a car wash, vendors, including some who were cooking meals for sale, a flea market, and other members of the public who were waiting to use public transport. This was a Sunday afternoon falling at the end of the month. The crowd at the scene of the crime was not homogenous. It was made up of these members of the public and members of the MDC-T who had relocated from the first venue of their celebrations.

No evidence was led that the crowd had a common intent.

The first and second appellants alleged, in their Defence Outlines, that they were at the shopping centre accompanying a friend whose shoe was being repaired in the car park. The third appellant alleged that he was attending a church service and adduced into evidence a video tape that proved his attendance at the church. The video tape, however, only recorded the church proceedings up to 12:30 in the afternoon.

The alleged crime was committed after 12:30pm - between 2:00pm and 4:00pm.

It was not in dispute that the fourth appellant, employed as a driver, was sent to pick up crockery from the celebrations. When he saw the disturbances at the shopping centre, he decided to make a U-turn. In the process, he picked up the first and second appellants.

It is further common cause that the actual perpetrator of the crime, who was unidentified, came from within the crowd that gathered at the shopping centre during the melee.

Against the backdrop that I have painted above, it is difficult to envisage how the crowd, including the appellants, could have knowingly come together with one intent for the purposes of the law.

In any event, the evidence led a quo showed that the crowd had not come together but that persons making up the crowd found themselves at the shopping centre at the same time that the conflict between the police and the members of the MDC-T erupted.

I pause to observe that the cases where the common law principle of common purpose was applied successfully in this jurisdiction invariably involved a team or group of persons setting out to commit a crime or crimes. The accused persons knowingly embarked on their respective criminal enterprises. An appreciable number of the cases involve a pair or teams of robbers: see S v Mubaiwa & Anor 1992 (2) ZLR 362 (SC); S v Ndebu & Anor 1985 (2) ZLR 45 (SC); Matende & Machokoto v S AD 55/79.

In Chauke v S 2000 (2) ZLR 494 (S), the accused persons were a group of prisoners that teamed up to escape from lawful custody.

The crowd in casu pre-existed the violence with no commonality unlike the mob in S v Safatsa 1998 (1) SA 869 AD.

In that case, the mob gathered and formed with the specific intention to attack the deceased in protest against an increase in the levies by their local council, in which the deceased was the Deputy Mayor. The mob had set out to attack the deceased, and others who were viewed to have voted for the increase in levies.

To ascribe a common intention or individual mens rea to each member of the crowd in such circumstances of this appeal, in my view, is to stretch the applicability of the common purpose doctrine beyond its highest water mark.

The crowd that was at the scene of the crime did not plan the outing as a criminal enterprise. It did not set out to attack the police. Individual members of the crowd were not armed with stones when they went to the shopping centre.

The stoning of the deceased was un-premeditated by the crowd and the regrettable tragedy was unforeseen. It was a riotous reaction to the presence of the police.

Quite understandably, at the close of the State case, there was no evidence tending to show that the crowd had come together at any one stage. Further, and again, understandably so, there was no evidence at the end of the State case that the crowd harbored a single intention.

In this regard, a contrast may be made to the facts in S v Safatsa 1998 (1) SA 869 AD where the court found that the accused shared a common purpose with the crowd to kill the deceased, and, consequently, the acts of the mob were imputed to each of the accused.

Per contra, in casu, there was no evidence led a quo that the crowd coalesced around a single intention to assault and/or to attack the police.

Instead, the evidence from the State witnesses shows that the crowd had different intentions, as shown by their different reactions to the presence of the police at the shopping centre. Some ran away. Some remained where they were and only ran away to hide when the violence unfolded. Some may have joined in the violence with unknown intentions.

To be fair to the respondent, it was never its contention that the crowd had one intention.

Some members of the crowd must have remained strangers to each other with their separate and individual intentions.

The law, as provided in section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) sought to penalise two or more people who, knowingly, embarked on a criminal enterprise. It was not the intention of this law to penalise two or more persons whose criminal intentions may have coincided as may have happened with the crowd in casu.

The possibility that this is what in fact happened was not shifted beyond a reasonable doubt.

I have examined the evidence that was led a quo to establish if there is any basis upon which I can infer that the crowd did come together with the intention of killing the deceased.

I find none.

The crowd remained a typical weekend crowd found at any busy shopping centre. There was no evidence, at the close of the State case, that it had a common intention to commit any crime. The defence case did not proffer such evidence.

Even if one were to infer that some members of the MDC-T formed the intention to repel the police with force, there is no evidence that this intention was shared with the members of the public who then knowingly associated with the political party in its alleged criminal intent.

I therefore find that, at the close of the State case, there was no evidence that the crowd knowingly came together with the intention of murdering the deceased and that the crowd in fact had that common intention.

No such evidence was adduced during the defence case.

On the basis of the finding that I make above, the appellants were entitled to their discharge, on the main charge, at the close of the State case.

Assuming that I have erred in making the above finding, the convictions of the first three appellants of murder, would, in any event, be invalidated by the provisions of the repealed section 196(8) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provided that:

“(8) For the avoidance of doubt, it is declared, that, this section may not be used to convict a co-perpetrator of murder unless he or she was present with the actual perpetrator while the victim was still alive and before a mortal wound or mortal wounds had been inflicted.”

Because the respondent was oblivious of the provisions of section 196 of the Criminal Law (Codification and Reform) Act in its entirety, no evidence was led to show that the appellants were present with the actual perpetrator when the deceased was felled by the brick that caused the mortal wound.

In the absence of such evidence, the law clearly provided, at the material time, that, the appellants could not be convicted of the murder of the deceased.

It is therefore my finding, that, there was no evidence a quo that the appellants had knowingly associated with the actual perpetrator of the crime with the intention of committing the crime or any crime and that they were present with the actual perpetrator when the crime was committed.

The defence case did not supply the missing evidence.

The requirements of section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) were not satisfied.

In the absence of evidence that the appellants participated in the commission of the crime, as provided for in the Criminal Law (Codification and Reform) Act (the Code), they cannot be convicted.

They are therefore entitled to an acquittal on the charge of murder.

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter so that what they plead is what the law requires their clients to prove to sustain the remedy they seek.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA
Ruled By: MAKARAU JP

This matter came before me in Motion Court as an application for default judgment in terms of Rule 58 of the High Court Rules, 1971.

The facts of the matter, as set out in the plaintiffs' affidavit of evidence, are as follows:

The plaintiffs are husband and wife. On 12 April 2005, they sold their rights, title, and interests in a certain piece of land in Budiriro Township in Harare. The agreement of sale was in writing.

It was a specific term of the agreement that the full purchase price would be financed from the proceeds of a staff loan to be advanced to the defendant from his employer.

It was also specifically agreed between the parties that the purchase price would be paid in full against the registration of a mortgage bond within 21 days of the signing of the Agreement of Sale.

On 13 July 2005, the 21-day period having long expired, the plaintiffs caused a letter to be sent to the defendant calling upon him to rectify the breach failing which the contract of sale would be considered cancelled.

In the letter, the plaintiffs also reserved to themselves the right to claim damages for the breach.

Unbeknown to the plaintiffs, the property had been transferred to the purchaser on 21 June 2005 - weeks before the letter of demand was sent.

Payment of the purchase price was only made on 2 August 2005 less certain deductions that were detailed in the letter from the conveyancers enclosing the cheque.

The cheque was sent back with a letter alleging that the Agreement of Sale had been cancelled and a reversal of the transfer would be sought.

On 3 March 2006, the plaintiffs issued summons against the defendant, claiming the sum of $366,503,000, being damages for breach of contract.

The summons was duly served personally on the defendant at his place of residence.

The dies induciae limited in the summons expired without the defendant taking any steps to defend the claim. The plaintiffs then applied for judgment, arguing that due to inflation, the amount of the cheque sent to them had been eroded by about 75%.

They further argued that the purchase price of the property was meant for an investment in a farming venture where the plaintiffs anticipated growing wheat for the 2005 season. Due to the delay in the payment of the funds, they missed their target and the tractor they intended to purchase had since increased in price.

In support of their claim, the plaintiffs attached a valuation report showing the value of the property as at 28 January 2006, months after the purchase price was tendered to the plaintiffs and months after the purchase price was due in terms of the Agreement of Sale.

When the matter was called up before me as an unopposed application for default judgment, I raised a number of issues with the plaintiffs' legal practitioners and requested him to file heads of argument to address those issues.

Heads were only brought to my attention on 29 March 2007, hence the delay in the handing down of the judgment.

Two issues have exercised my mind in this matter:

(i)...,.

(ii) Secondly, it has been advanced on behalf of the plaintiffs, and is indeed clear from the wording of the claim and the nature of the proof tendered in support of that claim, that the plaintiffs are raising inflation and the devaluation of the local currency as the basis of their claim and of calculating the damages allegedly due to them....,.

As stated above, the plaintiffs are aggrieved that the purchase price for the property, as agreed upon, had been eroded by inflation by the time payment was received; such that, in August 2005, it could only purchase 25% of what it could have purchased in April 2005.

In support of the amount of their claim, they attached a valuation report showing the amount the property would have fetched as at the date payment was finally tendered to them.

In my view, two issues immediately arise from the argument advanced by the plaintiffs:

(i) Firstly, whether inflation is a basis for calculating contractual damages; and

(ii) Secondly, the time when damages for breach of contract are to be assessed.

The second issue is easy of determination.

It is settled law that damages under contract are to be assessed as at the date performance was due and not as at the date of judgment.

In casu, the plaintiffs have sought to calculate their damages as at the date of the late payment by attaching a report showing the price that the property would have fetched at a date later than the date performance was due. They have thus approached the issue of quantifying their damages incorrectly.

In my view, they ought to have assessed their damages as at 21 days after the agreement was signed in April 2005.

Thus, the valuation report showing the value of the property as at 2 August 2005, on its own, is of no import and does not assist the court in assessing the damages due to them.

The plaintiffs have not addressed me adequately regarding the second issue.

In my view, the issue involves a detailed discussion of 'currency nominalism' and 'revalorization' and the place of such concepts in Zimbabwean law.

In SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833, it was held that currency nominalism underlies all aspects of South African law.

Currency nominalism holds that a debt sounding in money has to be paid in terms of its nominal value, irrespective of any fluctuations in the purchasing power. Thus, where currency nominalism is upheld, inflation has no role to play. Where however, “revalorization” is upheld, the current purchasing power of the currency is established and the amount of the debt is increased to take into account this 'appreciation': see Eden and Another v Pienaar 2001 (1) SA 158 (W).

Due to my limited research, and in the absence of meaningful assistance from the plaintiffs, I have not been able to come across any Zimbabwean case where these concepts are discussed in detail for me to establish the position in Zimbabwean law.

I merely flag the concepts for fuller argument in an appropriate case.

In casu, it is my view that the plaintiffs have not adequately shown how they are calculating the damages due to them, if any, and, in doing so, how they have factored in inflation and what rate of inflation they have used and whether this is acceptable under our law.

It is not enough, in my view, to show that had the defendant paid in time, the plaintiffs would have had amount equal to the value of the property as at the date of the late payment. That is not the correct measure of the rate of inflation and it does not answer the question whether the difference in the purchasing power of money, especially in this hyper-inflationary environment, constitutes a basis for claiming damages under Contract Law.

Further, it does not answer the question whether currency nominalism, as it applies to the purchase price under a contract of sale, does not underlie the law of contractual damages in this jurisdiction.

It is my view that the plaintiffs need to address these issues further and possibly lead more evidence in support of their claim.

On the basis of the foregoing, the plaintiffs' application for default judgment cannot succeed.

In the result, I make the following order:

1. Absolution from the instance is granted.

2. There shall be no order as to costs.

HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE
Ruled By: CHEDA AJ

In preparation for trial, the plaintiff filed a synopsis of evidence in which he said he would lead evidence to show that on the 13th day of July 2010, at the intersection of 3rd Avenue and Herbert Chitepo Street, in Bulawayo, the first defendant's haulage truck rammed into the plaintiff's ...

In preparation for trial, the plaintiff filed a synopsis of evidence in which he said he would lead evidence to show that on the 13^th day of July 2010, at the intersection of 3^rd Avenue and Herbert Chitepo Street, in Bulawayo, the first defendant's haulage truck rammed into the plaintiff's vehicle and that the accident was due to the negligence of the second defendant. He particularized the negligence of the second defendant. He said his vehicle was damaged beyond repair and he suffered loss of income.

He was claiming ZAR587,500=.

When the trial commenced, the plaintiff's driver was called first. He narrated how the accident occurred at the intersection of Herbert Chitepo and 3^rd Avenue. He said the defendant's vehicle approached from his right side, ignored a Give Way sign and rammed into the plaintiff's vehicle which he was driving. In answer to questions put to him, he said as an employee he was not in a position to give details about the correct identity of the plaintiff in the papers whether it is a company or an individual.

He said he did not know about the value of the vehicle or the possible costs of its repair. He was therefore unable to answer any questions concerning the value of the damages claimed by the plaintiff.

This gap in the evidence of the plaintiff's case required the direct evidence of the plaintiff.

Order 46 Rule 408 of the High Court Rules provides that in the absence of any agreement, in writing, between the legal practitioners of all the parties, and subject to these Rules, the witnesses at the trial of any action shall be examined viva voce and in open court, but the court may, at any time, for sufficient reasons, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the court may think reasonable, or that any witness, whose attendance in court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a Commissioner or Examiner.

In this case, no such arrangement was made, and no explanation was given for not calling the plaintiff…..,.

Other documents filed in this case showed that the vehicle was registered in the name of Teddy Mkandla. On seeking the correct identity of the plaintiff counsel for the defendants was unable to get any clarification in the absence of the plaintiff.

When the plaintiff's case was closed the matter could have ended there. However, the defendants submitted that instead of absolution from the instance they preferred to lead their evidence so that the matter is brought to finality. Evidence of the defendant was then led and the first defendant persisted in his denial of liability.

At the end of the hearing, it was clear that the plaintiff, who had undertaken, in his synopsis of evidence filed, to lead evidence to prove his damages, had not led such evidence. No reason was given for not calling him. The plaintiff therefore failed to prosecute his claim as required by the Rules of Court which require that he give viva voce evidence and be cross-examined. He was not present even to explain the query about the correct ownership of the damaged vehicle.

The law requires that a party who is claiming damages must prove his damages in court. A party cannot send documents to court and leave it to the court to determine the claim for him. What he stated in the summons must be substantiated in open court by his viva voce evidence….,.

The plaintiff in a claim for damages has to prove the damages. He cannot leave it to the court to work out damages for him. Only the plaintiff could give evidence as to the value of the vehicle when it was purchased, the value of the vehicle at the time of the accident, or what it would cost him to repair it.

The plaintiff's legal practitioner called two (2) expert witnesses to testify on the reasons why the vehicle could not be repaired. Their evidence concerned the damage to the vehicle and that trying to prepare it for subsequent use as a public service vehicle would render it dangerous to passengers. None of these witnesses could give evidence as to the value of the vehicle prior to the accident and the loss suffered by the plaintiff for the loss of its use. All they could do was to estimate the cost of similar vehicles - evidence which remained unsatisfactory. This evidence could not be relied on as proof of the damages suffered by the plaintiff….,.

In this case, the case ended without the plaintiff's evidence, and, as such, the plaintiff has not proved his case.

The end result is that the plaintiff's case is dismissed with costs.

SC49-16 : MONTEREY ESTATE (PRIVATE) LIMITED vs KENNY BROXHAM
Ruled By: MALABA DCJ, ZIYAMBI JA and MAVANGIRA AJA

This is an appeal against the quantum of damages in lieu of reinstatement that was awarded to the respondent by the arbitrator and upheld, on appeal, by the Labour Court.The respondent was employed by the appellant as a Farm Manager in November 2008. On 30 November 2009, without any prior ...

This is an appeal against the quantum of damages in lieu of reinstatement that was awarded to the respondent by the arbitrator and upheld, on appeal, by the Labour Court.

The respondent was employed by the appellant as a Farm Manager in November 2008. On 30 November 2009, without any prior warning, the respondent, through a letter, was given a month's notice of termination of his services, effective from 1 December 2009 to 31 December 2009. The respondent was also asked to vacate the farmhouse and move off the property by not later than 31 December 2009.

On 21 December 2009, the appellant paid the respondent $2,100= broken down as follows:

(a) $900= which was due in respect of payment shortfalls for the months of December 2008, January 2009 and February 2009.

(b) $600= for 26 days of leave pay; and

On 8 February 2010, the respondent wrote a letter of complaint to a Labour Officer and requested that there be a hearing which would facilitate the payment of what he claimed to be due to him by the appellant. The process culminated in the issuance of a certificate of no settlement and the matter was referred for compulsory arbitration.

The issues for determination by the arbitrator were stated as:-

1. To determine whether the dismissal was lawful and fair.

2. To determine the nature of contract, whether open ended or not.

3. To determine the quantum of terminal benefits.

4. To determine the appropriate remedy.

The initial arbitral award made by the arbitrator is not on record. What is on record is the award of 21 July 2010. Therein, the arbitrator stated that the matter was before him for quantification of damages. He stated that in his (earlier) award he had requested the parties to negotiate on the quantum but they had failed to reach agreement. He stated that from the submissions by both parties it was clear to him that the parties were agreed on the headings under which remuneration was due to the respondent but were not agreed on the quantum. He listed the agreed headings as:

(a) Salaries.

(b) Medical Aid.

(d) Accommodation.

(e) Fuel.

(f) Domestics/Utilities.

(g) Electricity and water.

(h) Tobacco seed.

(i) Leave entitlements.

The arbitrator proceeded to award specific amounts in favour of the respondent for each of the headings as well as an additional one titled “commission.” The awards that the arbitrator made in respect of salaries, accommodation, fuel, domestic/utilities as well as electricity and water were calculated on the basis of a monthly figure multiplied by nine months. Regarding medical aid, the arbitrator determined that he would grant the respondent one year's cover instead of the two years that he was claiming. On school fees, he awarded an amount that he said was the 3^rd term fees for that year as well as an additional amount for which he gave no explanation. Under the heading 'tobacco seed' the arbitrator calculated what was due to the respondent on the basis of a percentage of the 2009 harvest. He justified this on the ground that the then current season's tobacco had not been sold yet. He used the same method for an award under the heading 'commission', which he also based on a percentage of the 2009 harvest.

The amounts thus awarded totalled $35,434=.

It is apposite to state at this juncture that the respondent accepted alternative employment with effect from May 2010. He was thus out of employment for four months. His new monthly salary was $500= gross without any benefits. His payslip was produced as proof thereof.

The appellant was aggrieved by the arbitrator's decision and appealed to the Labour Court on the following grounds:-

1. The learned arbitrator erred in law in failing to appreciate that the onus lay on the respondent to prove his claim. Hence the respondent should have adduced evidence to substantiate figures he gave for the sale of tobacco crop and tobacco seed respectively.

2. The learned arbitrator grossly misdirected himself in awarding commissions on tobacco crop and tobacco seed based on the sales figures of the 2009 crop.

3. The learned arbitrator erred in law in awarding medical aid in the absence of proved medical expenses.

4. The learned arbitrator erred in law in failing to appreciate that when assessing damages, consideration should be had to the fact that the respondent was now working and accordingly his earnings and benefits should have been taken into account in assessing the sum due.

5. The learned arbitrator erred in being satisfied that the appellant had proved his damages on a balance of probability.

6. The learned arbitrator erred in finding that sufficient evidence had been produced by the appellant to prove its claim.

7. The learned arbitrator misdirected himself in making an award for the period he did.

The Labour Court dismissed the appeal and upheld the arbitrator's quantification of damages payable to the respondent in the amount of $35,434=. In its reasons, the Labour Court stated, inter alia, that the arbitrator indicated in his award that evidence was led before he made the determination of the appropriate amounts due and payable to the respondent. The court a quo further indicated that it had no reason to doubt that evidence was led in support of the claim and that such evidence formed the basis of the learned arbitrator's award. It went on to make the following remarks:-

“It was submitted, on behalf of the respondent, that while the respondent may have secured alternative employment, such alternative employment paid the respondent considerably less than what he used to get. It is not disputed that where such a situation exists, the employee is entitled to compensation of the difference (between the former earnings and the alternative employment secured) in both salary and benefits in order for justice to be done. I have satisfied myself that evidence was led in the earlier tribunal. It follows that the necessary considerations were made before the award was made.”

The appellant has now appealed to this court against the decision of the Labour Court on the following grounds:-

1. The court a quo erred in law by upholding an award of damages for any period in excess of the period which respondent was actually out of employment.

2. The court a quo erred in law in upholding (without stating reasons for doing so) an award for payment in respect of a commission that had not yet accrued.

3. The court a quo erred by upholding (without stating reasons for doing so) an award for medical aid in the absence of any evidence that the respondent had in fact incurred medical expenses.

4. The court a quo erred in finding that the arbitrator received evidence as to:

(i) The time it would have taken the respondent to find alternative employment: and

(ii) The disparity, if any, between the respondent's actual earnings and his notional earnings from comparable employment.

(iii) The error was so gross as to amount to an error of law.

5. The court a quo consequently erred in law by upholding findings made by the arbitrator with no evidentiary basis.

It is not in dispute that the respondent was out of employment for a period of four months after which he accepted a job with less remuneration. The arbitrator however went on to award damages for a period of nine months. A perusal of the record, including the arbitral award, does not support the finding of the court a quo that there was any evidence led to justify the computation done by the arbitrator. The nine month period and the amounts granted under the various headings are not based on any evidence that was placed before the arbitrator. No such evidence is reflected on the record. No basis was laid for picking on the nine month period and not any other period.

The onus was on the respondent to prove that he was owed more than what the employer paid him. He did not discharge that onus.

Counsel for the respondent conceded as much before this court.

This inescapable concession by counsel for the respondent resolves this appeal.

She rightly conceded that the court a quo seriously misdirected itself by upholding awards that were made without any legal basis. The arbitrator having had no basis to make them, the court a quo had no basis to confirm such awards on appeal; no evidence having been placed before the court a quo to substantiate such quantification.

The lower court's decision is therefore founded on a misdirection.

The case of Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417, that was cited by the respondent, is of no avail to his case for it merely states that an employee who has been wrongfully dismissed has an immediate duty to mitigate his loss. It also places a limit on the period for which damages may be payable, to the period between the date of dismissal and the date when new employment is found.

In casu, the respondent was out of employment for four months. Thus, the quantification of damages ought to have been based on the four month period. As already noted earlier, the nine month period used in the computation of the amount granted in the arbitral award has no basis or explanation and is completely arbitrary.

Despite making reference to Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 and Zupco v Daison 2002 (2) ZLR 628, the court a quo failed to point to the evidence on which the arbitrator's quantification was based. It appears to have acted on the premise that the arbitrator must have received the necessary evidence. The court a quo itself did not hear any evidence that would justify the quantification from the respondent.

As counsel for the respondent rightly conceded, there is no such evidence on the record.

In Zupco v Daison 2002 (2) ZLR 628, SANDURA JA stated:

“…, in its judgment, the Tribunal did not say why it chose the period of forty-eight months as opposed to any other period. As stated in Nyaguse v Mkwasine Estates (Pvt) Ltd 2000 (1) ZLR 571 (S) at 575D;

'If the tribunal is forced to make an estimate, it must use the information to hand, and not simply pluck a figure from nowhere.'

In the circumstances, I am satisfied that the Tribunal's decision can be categorised as wholly unreasonable…..,.”

Likewise, in casu, the award of damages for a period in excess of four months was wholly unreasonable.

This court was also referred to Duly Holdings Limited v Clever Spanera 2005 (1) ZLR 407 (S); SC140-04 wherein CHIDYAUSIKU CJ referred to Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 and quoted McNALLY JA who stated at 419A:

“He (the employee) will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have been expected to find alternative employment.”

And at 419D:

“But if an employee is wrongfully dismissed his duty to mitigate his loss arises immediately. If he is offered a good job a day after he is dismissed he must take it, or forfeit any claim for damages. If he is offered a good job only after he has been unemployed for six months, he must take it. If, in the meantime, he has instituted proceedings for reinstatement he may continue these, but his claim for damages will usually then be limited to his loss over the six month period.”

The learned CHIEF JUSTICE proceeded to state thereafter:

“…,. On the strength of Ambali's case, the respondent is entitled to damages calculated on the basis of his income from the date of his dismissal to the date when he found employment.”

The quantification done by the arbitrator, and upheld by the Labour Court, in this matter is legally unsustainable. As the respondent did not prove that he was entitled to more than what the appellant had paid him, the Labour Court ought to have granted absolution from the instance.

For the above reasons, the appeal must succeed with costs. The order of the Labour Court must therefore be set aside and substituted with an order of absolution from the instance. Accordingly, it is ordered as follows:

1. The appeal be and is hereby allowed with costs.

2. The order of the Labour Court be and is hereby set aside and substituted with the following:

“(1) The appeal be and is hereby allowed.

(2) The arbitral award dated 21 July 2010 be and is hereby set aside and substituted with the following:

“The respondent be and is hereby absolved from the instance.”

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

This is an application for absolution from the instance.

The first defendant contends that at the close of the plaintiff's case the court should find that the first plaintiff has hopelessly failed to place any evidence before the court upon which a reasonable court may find for the first plaintiff.

A joint pre-trial conference memorandum signed and filed by the parties sets out the issues for determination as follows:

1. Whether or not House Number 8566 Pumula East Township, Bulawayo, registered in the names of the late Preece Nhliziyo should be declared as being owned by the estate of the late Harold Nhliziyo.

2. Whether or not Thembelani Adrian Nhliziyo should be declared the only beneficiary in the Estate of the Late Preece Nhliziyo and House Number 8566 Pumula East Township, Bulawayo, must be transferred into his names.

3. Whether or not the first plaintiff, and all those claiming occupation through her, should vacate House Number 8566 Pumula East Township, Bulawayo, fourteen days after the order is served on her.

4 Whether or not the first plaintiff should pay holdover damages (rentals) in the sum of US$250 calculated from the date she issued summons to date of her eviction.

The first plaintiff avers, in her declaration, that she is the Executrix Dative in the estate of the late Harold Nhliziyo in terms of Letters of Administration dated 22 March 2011. The second plaintiff is the estate of the late Harold Nhliziyo who died at Bulawayo on 17 December 2010.

The first defendant is cited in her capacity as the guardian of Thembelani Adrian Nhliziyo, a minor child and beneficiary in the Estate of the Late Preece Nhliziyo (the third defendant).

The first plaintiff further avers that the late Harold Nhliziyo was married to three different women before his demise. His first marriage ended in divorce and his second wife pre-deceased him.

At the time of his death, he was married to the first plaintiff.

It is not in dispute that on 14 February 1986 the late Harold Nhliziyo purchased, from the City of Bulawayo, Stand 8566 Pumula East, Bulawayo. The first plaintiff alleges, in her declaration, that, after his divorce with his first wife the late Harold Nhliziyo transferred Stand 8566 Pumula East, Bulawayo into the names of his late son, Preece Nhliziyo.

She avers, further, that, it was the intention of the former, that, upon his death, the property be inherited by Preece Nhliziyo and his siblings. Preece Nhliziyo died in 2004, before his father died, and his estate was registered in 2007.

It is the first plaintiff's case, that, the late Harold Nhliziyo failed to effect a change of ownership of the property back into his names before he died.

The first plaintiff also contends, that, the first defendant was once married to the late Preece Nhliziyo before she abandoned him when he became critically ill.

It is the plaintiff's case that Preece Nhliziyo was never ordinarily resident at the property in dispute and that the first defendant has no right to the property.

At the heart of the plaintiff's case was the assertion that the house belongs to the estate of the late Harold Nhliziyo and not the estate of the late Preece Nhliziyo.

The property was “provisionally” registered in the name of Preece Nhliziyo to prevent Harold Nhliziyo's first wife from laying a claim in the property in divorce proceedings.

This was the first plaintiff's position. She said her version was largely based on what she was told by Harold Nhliziyo before he died.

The first plaintiff gave evidence.

She largely abandoned her case as set out in the declaration.

It emerged, from her evidence, that, it was not true that Harold Nhliziyo had transferred Stand 8566 Pumula East, Bulawayo into the names of Preece Nhliziyo after his divorce with his first wife. The first plaintiff admitted that that the property was transferred into Preece's names before the divorce.

It was also established that the first plaintiff was only married to Harold Nhliziyo in 2005.

She had two children with the late Harold Nhliziyo, namely, Ashley Nhliziyo (born in 1998) and Andila Nhliziyo (born in 2002).

The house in dispute was registered into the names of Preece Nhliziyo in 1993.

It is therefore not possible for Harold Nhliziyo to have intended the unborn children to benefit from the said property.

In any event, when the house was transferred into the names of Preece Nhliziyo, the late Harold Nhliziyo had not even met the first plaintiff.

Her claim, that her late husband had told her that he was making provision for children who were not born, does not make sense and the plaintiff failed to explain that discrepancy.

Under re-examination by her legal practitioner, she was asked to explain why her husband transferred the house into the names of Preece Nhliziyo. She said her husband had told her that he had a problem pertaining to divorce.

When the first plaintiff led evidence, she gave the impression, that, at the time the property was transferred into Preece Nhliziyo's names, he was a school-going child who had no means of income. This was refuted by the first plaintiff's own witness, Mandleni Nhliziyo, who testified, that, at the material time, Preece Nhliziyo was already in his late twenties.

The first plaintiff's witnesses, Jack Nhliziyo and Mandleni Nhliziyo, were extremely unhelpful to the court.

Their evidence was vague and of little assistance to the plaintiff's case.

Jack Nhliziyo stated that he was a brother to the late Harold Nhliziyo. He informed the court that he was staying in Gwanda at the relevant time. He would visit his brother, in Bulawayo, from time to time. He said his brother told him certain things, but that sometimes he would not. He testified, that, sometime in 1993 he approached the late Harold Nhliziyo at Edgars, Bulawayo where he was employed. His late brother confided that he had a problem with his wife. He indicated that he would use his child, Preece, to protect his property from distribution in a pending divorce.

Jack Nhliziyo said he did not have any further information on the house in dispute save for that discussion he had with his late brother.

The second witness for the first plaintiff was Mandleni Nhliziyo.

The witness told the court that he knew the property being 8566 Pumula East, Bulawayo to belong to the late Harold Nhliziyo. He stated, that, on a certain day, he saw papers at the late Harold Nhliziyo's house bearing the names Preece Nhliziyo. He said upon enquiry with the late Harold Nhliziyo he was advised that the property had been transferred into Preece Nhliziyo's names for the sole purpose of preventing the first wife from claiming a share in the property.

The witness could not explain why the late Harold Nhliziyo had not re-transferred the property into his names after the divorce with his first wife.

In summary, the first plaintiff's evidence was centred on what she said she was told by the late Harold Nhliziyo.

Her oral testimony is not consistent with the averments in her declaration.

An assessment of her evidence clearly shows that she hinged her claims on what she says she was advised by Harold Nhliziyo.

There is a reasonable possibility that she was misled by the late Harold Nhliziyo.

There would be no reason why Harold Nhliziyo would have failed to regularise the ownership of the house from 1993 up to 2011 when he met his death. He had two children with the first plaintiff, in 1998 and 2002, and he would have had ample time to ensure that his two children with the first plaintiff were adequately catered for upon his death.

I must observe, that, the first plaintiff did concede that she inherited a rural home with a seven-roomed house at Filabusi. Her late husband also left behind eighteen head of cattle, a motor vehicle, and some household goods and effects at the said rural homestead.

It is my view, therefore, that, on the evidence led and placed before the court, at the close of the plaintiff's case, there is no evidence upon which a reasonable court may find for the first plaintiff.

The case of Savana Maisiri and Shalati Maisiri v Abisha Maisva and Norton Town Council HH35-07 is relevant.

The test to be applied in an application for absolution from the instance was well set out in the case of Lourenco v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 and Munhuwa v Mhukahuru Bus Service (Pvt) Ltd 1994 (2) ZLR 382.

In the case of Cathrine Chiwawa v Apostolos Mutzuris HH07-09, the learned MAKARAU JP stated…, as follows:

“At this stage, I wish to point out, that, I agree with the observation by Advocate Zhou, that, at this stage in the trial, I may not make recourse to any findings I may have made on the credibility of the plaintiff as a witness. I also cannot determine the application for absolution on the basis of probabilities as I cannot justly arrive at these without hearing the other side. I take the view that the exercise I have to undertake at this stage is to simply but critically analyze the evidence adduced by the plaintiff and assess whether, on the basis of such, without passing a judgment on whether I believe it or not, I can make a reasonable mistake and pass judgment in her favour.”

In applying the above test, there is no doubt in my mind that the first plaintiff departed from the assertions in her declaration.

The totality of her evidence is that she placed reliance on what he was told by her late husband.

Even assuming that what her late husband told her was proved to be true, there would still be a gap in the evidence in that there is no explanation given as to why the late Harold Nhliziyo did not transfer title in the property back into his names following the divorce with his first wife.

Before marrying the first plaintiff, the late Harold Nhliziyo even married a second wife who predeceased him.

If the late Harold Nhliziyo intended to bequeath the rights, title and interest in the property to his children with the first plaintiff he had all the time to do so.

I am not satisfied that the first plaintiff has established a prima facie case. The application for absolution from the instance has merit.

I accordingly order as follows:

1. The first defendant is absolved from the instance.

2. The first plaintiff shall bear the costs of suit.

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

The word prima facie is a latin word which means 'at first view' or 'on the face of it.'A prima facie case will be established where facts alleged, if not rebutted, would result in those facts being conclusive to found a case against the accused.

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

The phrase prima facie is Latin for 'at first sight' or 'sufficient to establish a fact or raise a presumption unless disproved or rebutted' or 'on first appearance but subject to further evidence or information.'This therefore means, that, evidence which is prima facie is not absolute as contended for by ...

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE
Ruled By: MAKONESE J

This application has been brought to court in terms of the provisions of Order 11 Rule 75(1) of the High Court Rules 1971 for the dismissal of claims filed by the respondent in an action under case number HC568/13.

The applicant contends, that, the respondent's claims are frivolous and vexatious.

The application is opposed by the respondent who forcefully argued, through his legal counsel, that the application for dismissal is misguided and an abuse of court process.

Background

The parties were married to each other in terms of the Marriage Act [Chapter 5:11]. The marriage was terminated by order of this court on 28 June 2012.

The respondent was in default.

Both parties reside in the United Kingdom, having left Zimbabwe almost a decade ago.

The terms of the divorce order were as follows:

“1. A decree of divorce be and is hereby granted.

2. Custody of the minor child, namely, Thabiso Dube (male) born on the 22 May 1995 be awarded to the plaintiff with the defendant enjoying access to the child.

3. An order for maintenance at £200 per month.

4. Plaintiff be awarded the following property as her sole and exclusive property:

Wall Unit, plants and ornaments, 2 piece sofas, TV stand, desktop computer, computer table, canon printer, fridge, 4 plate stove, ST Joseph stand and shops (plus movables thereat).

5. Defendant be and is hereby awarded as his sole and exclusive property and the movable assets at the Parklands home, specifically the following:

Double door fridge, 4 plate stove, six kitchen chairs and table, microwave, kitchen utensils, dining room suite, lounge suite, glass TV stand, 2 TVs, sharp radio, phone table, 3 beds, 2 bedroom suites, chest of drawers, dressing table and stool, curtains, Gwanda homestead (plus household goods thereat and livestock).

6. An order that the matrimonial home, being number 16, St David's Road, Parklands, Bulawayo, be sold by the plaintiff or her lawful agents and the proceeds of the sale be shared equally between the parties.

7.1 For the purposes of sale and transfer of the matrimonial home to the successful purchaser, the plaintiff be and is hereby authorized to nominate the conveyancer to attend to such transfer and the Deputy Sheriff, Bulawayo be and is hereby authorized and directed to sign all transfer documents vide the defendant.

7.2 No order as to costs.”

On 1 March 2013, the respondent filed an action in this court seeking the following relief:

“An order directing defendant to deliver all movable assets awarded to the plaintiff by the High Court in case number HC3446/11 housed at number 16 St Davids Road Parklands, Bulawayo, which assets the defendant unlawfully and wrongfully caused to be removed therefrom during the period extending from June 2012 to an unknown date, or, alternatively, failing such delivery payment of the value of the assets in the sum of US$22,960=.”

In paragraph 4 of his Declaration, the plaintiff states as follows:

“Paragraph 5 of the divorce order between the parties awarded the defendant all assets at the Parklands home of the parties including the movable assets listed in Annexure 'A' hereto.”

I note that Annexure “A” referred to in paragraph 4 of the Declaration is in effect the Order for divorce issued by the court on 28 June 2012.

The plaintiff then remarkably claims, in paragraph 5 of his Declaration, that:

“In addition to the assets named in paragraph 5 of Annexure 'A' the parties had also acquired the assets listed in Annexure 'B' attached hereto.”

What is of serious concern is that Annexure “B” is a two page long list of items of property not included or referred to in the original divorce order.

The respondent alleges these assets were acquired by the parties during the course of the marriage.

It is clear that paragraph 5 of the Declaration contradicts the order sought by the plaintiff.

The clear intention of the respondent can only be to mislead the court, because, in the summons, the plaintiff (respondent) in this matter purports to claim the assets (or the values thereof) which were awarded to him in terms of the divorce order.

This is in fact not the case.

The plaintiff is attempting to revisit the distribution of matrimonial assets via the back door. This cannot be proper. The assets have clearly been overvalued so that they equate to US$22,960=, an amount which the applicant claims will wipe out her half share in the sale of the matrimonial house as ordered by the court.

The Legal Position

The respondent is not the owner of the assets listed in Annexure “B” of the summons. The said assets are supposed to be matrimonial property, or assets of the spouses, as defined in section 7(a) of the Matrimonial Causes Act [Chapter 5:13].

It is settled law, that, matrimonial assets can only be dealt with in an action for divorce, judicial separation, or nullity of marriage in terms of section 2(1) of the Matrimonial Causes Act which states as follows:

“Action for divorce, judicial separation or nullity or marriage means an action by which a decree of divorce, judicial separation, or nullity of marriage or other relief in connection therewith is applied for…,.”

In this matter, the established facts are that the parties were divorced by an order of this court granted on 28 June 2012. The divorce order was granted in default of the respondent.

If the respondent was aggrieved with the terms of the divorce order, he should have applied for an order rescinding the judgment of the court in order to obtain what he may have considered to be a just and equitable distribution in terms of section 7(1)(a) of the Matrimonial Causes Act which provides as follows:

“7(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or, at any time thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;”

It is my view, that, the respondent's claim, in the main action, should have been dealt with as a matrimonial action in terms of the Matrimonial Causes Act.

The respondent's claims, as presently framed, are bad at law to the extent that they are frivolous and vexatious.

Rule 75(1) of the High Court Rules is designed to assist a defendant by enabling him to apply to court to dismiss a frivolous and vexatious action.

Such an application is the converse of an application for summary judgment and much the same considerations apply, namely, whether the plaintiff has an arguable case. The court will not dismiss an action under this Rule unless satisfied that the likelihood of the case succeeding stands outside the realm of probability altogether.

An action is deemed vexatious if it is impossible to succeed.

See the case of Wood NO v Edwards 1986 (2) RLR 212 and the case of Rogers v Rogers and Another 2008 (1) ZLR 330.

In Rogers v Rogers and Another 2008 (1) ZLR 330 MALABA JA had this to say…,;

“Summary dismissal of an action, in terms of Rule 79(2) of the Rules, is an extraordinary remedy to be granted in exceptional cases. The reason is that granting the remedy has the effect of interfering with the elementary right of free access to the court. The object of the Rule is to enable the court to stop an action which should not have been launched.”

The learned Judge went on to state as follows:

“It appears to me, that, a plaintiff who commences action in a court of law when he has no reasonable grounds to do so has no cause of action. An action without a good cause of action is obviously unsustainable.”

In casu, I am satisfied, that, when the respondent commenced legal proceedings in the manner he did, under case number HC568/13, he knew that he was misleading the court. At the very least, he was aware that the property that he was seeking to obtain through legal process was property that fell outside the initial order of divorce. The respondent was clearly aware, that, if he sought to rescind the default judgment he could do so and invoke the provisions of the Matrimonial Causes Act for an equitable distribution of assets. He elected, however, to proceed on facts that sought to mislead.

The conduct of the respondent, in my view, amounts to abuse of court process. The applicant is entitled to costs in a higher scale.

In the circumstances, I make the following order:

1. The action filed under case number HC568/13 be and is hereby dismissed on the ground that it is frivolous and vexatious.

2. Judgment of absolution from the instance is hereby granted.

3. Respondent is ordered to pay costs on the legal practitioner and client scale.

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

This is an appeal and cross-appeal against parts of the judgment of the High Court dated 4 September 2014 granting a decree of divorce and ancillary relief for and against the appellant (the plaintiff in the court a quo and the appellant in this appeal) and the cross-appellant (the defendant ...

FACTUAL BACKGROUND

The facts of the case can be summarised as follows:

On 1 September 1990, the appellant and the first respondent were married in terms of the then Marriages Act [Chapter 37].

During the subsistence of the marriage, the parties were blessed with three children, namely, Murray John Coumbis, who was already an adult at the commencement of divorce proceedings, and the twins, Julian Ronald Coumbis and Anton Phillip Coumbis. Julian and Anton were minors when divorce proceedings were instituted.

They are now adults, but, Julian remains a perpetual minor on account of his mental incapacity.

On 5 August 2010, the appellant instituted divorce proceedings against the first respondent. As Julian and Anton were minors, the appellant claimed their custody and maintenance. She also claimed personal maintenance and a share of the assets of the parties.

The appellant also claimed €10,400 from the respondent which she had advanced as a loan to Stir Crazy (Pvt) Ltd, a family business. She contended that the money was part of her inheritance. She claimed to have loaned it to the first respondent through Stir Crazy (Pvt) Ltd. She claimed the money from him alleging that the aforementioned company was an alter ego of the first respondent.

The first respondent opposed the appellant's claims and made a claim in reconvention wherein he claimed the custody of the minor children and their maintenance. He contested the appellant's claim for personal maintenance and matrimonial property. He alleged that some of the properties claimed by the appellant did not form part of their matrimonial estate.

The matter proceeded to a joint pre-trial conference where the following issues were identified and referred to trial:

“(a) The custody of Julian and Anton;

(b) What amount of maintenance was to be paid to the plaintiff if custody is awarded to her;

(c) Whether the plaintiff could be awarded the right to reside in the matrimonial home until both children became self-supporting;

(d) Whether the defendant was obliged to pay personal maintenance to the plaintiff;

(e) Which properties constituted the matrimonial estate;

(f) What appropriate order the High Court was supposed to make for the sharing of property.”

PROCEEDINGS IN THE HIGH COURT

When the trial commenced, Julian and Anton were no longer minors. However, the parties agreed that Julian was to be treated as a perpetual minor due to his mental incapacity.

The parties claim for custody and maintenance, therefore, only related to Julian.

The parties adduced a lot of documentary evidence to support their respective claims.

During examination-in-chief, the appellant admitted that she had a broken relationship with Julian. She admitted that she had exchanged nasty emails with him. The appellant also admitted to smoking marijuana. The fact that she smokes marijuana was confirmed by Dr Chibanda who pointed out its adverse effect on her health and especially on her recovery from temporal lobe epilepsy.

After hearing the evidence, the judge a quo interviewed Julian in his chambers.

The court a quo found that Julian was closer to the first respondent and took into consideration the fact that the two had been staying together after the parties separation.

It also found, that, the appellant needed to start a new life independent from the first respondent but still needed financial assistance to cushion her from the effects of the divorce.

The court a quo found that the first respondent was dishonest and not credible in respect of evidence relating to the matrimonial estate.

The order granted by the court a quo, quoted verbatim, reads as follows:

“Accordingly, it is ordered as follows:

1. A decree of divorce be and is hereby granted.

2. Custody of the perpetual minor child, Julian Ronald Coumbis, born on 3 July 1994, be and is hereby awarded to the defendant.

3. The plaintiff be and is hereby granted reasonable access rights to the said perpetual minor child which shall be exercised as follows:

3.1 She shall have the right to stay with the said perpetual minor child on alternate weekends.

3.2 She shall have the perpetual minor child on any other special occasions, including, but not limited to, each alternate Easter holidays and Christmas holidays.

4. The defendant shall solely be responsible for the upkeep of the said perpetual minor child.

5. The defendant shall pay maintenance in respect of the plaintiff in the sum of US$2,000 per month, as per the order granted by the Magistrate's Court, for a period of six (6) months from the date of granting of this order inclusive of the month of September 2014.

5.1 Payments shall be made directly into the plaintiff's Bank Account whose details shall be provided forthwith to the defendant by the plaintiff.

6. The plaintiff is awarded as her sole and exclusive property all household furniture, contents and effects, inclusive of all her personal items and jewellery, at the matrimonial house, No.6 Northwood Rise, Mt Pleasant Harare, excluding the TV set, dinning suite, and lounge suite which are awarded to the defendant.

7. The defendant shall transfer into the plaintiff's name a motor vehicle, Nissan Navara Registration Number ABD 6847, presently being used by the plaintiff, at his sole cost, within thirty (30) days of the grant of this order.

8. The defendant is awarded, as his sole and exclusive property, immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare currently registered in the names of the plaintiff and the defendant.

8.1 The defendant shall transfer, against payment by him of all transfer costs, the said property into his names and the plaintiff shall sign all relevant papers to effect such transfer within 30 days of being requested, failure of which the Sheriff shall sign all the documents.

8.2 The defendant shall be solely responsible for any encumberances, mortgages, or other obligations duly existing or registered by law over the said property.

9. The defendant shall transfer all shares of OPIUM INVESTMENTS (PVT) LTD, a property-owning company whose sole asset is an immovable property known as No.13 Bates Street, Milton Park, Harare to the plaintiff within thirty (30) days of the grant of this order at his cost.

9.1 The defendant shall be solely responsible for any encumberancies or obligations duly existing or duly registered by law over the said property.

9.2 The defendant shall sign all the relevant documents to effect such transfer failure of which the Sheriff is authorised to sign all such documents.

10. The plaintiff is awarded, as her sole and exclusive property, an immovable property known as No.6 Rosefriars, Avondale, Harare.

10.1 The plaintiff shall transfer, against payment by her of all transfer costs, the rights, title, and interest in the said property, No.6 Rosefriars, Avondale Harare.

10.2 The defendant, shall, within thirty (30) days of being requested to, sign all relevant documents to effect such transfer, failure of which the Sheriff is authorized to sign all such documents.

11. The plaintiff's claim for cash, in the sum of US$100,000, be and is hereby dismissed.

12. Absolution from the instance be and is hereby granted in respect of the distribution of the following assets:

(a) 94 Matumi Sands Lonehill (Pty) Ltd.

(b) 112 Matumi Sands, Lonehill (Pty) Ltd.

(c) 182 Shingara (Pty) Ltd.

(f) Theright Investments (Pvt) Ltd.

(g) Stir Crazy (Pvt) Ltd.

(h) Incavat Enterprises (Pvt) Ltd.

(i) Telehic Investments (Pvt) Ltd.

(j) Natsbury Trading (Pvt) Ltd.

(k) Plaintiff's claim of £10,400.

13. The defendant shall bear the costs of suit.”

Aggrieved by parts of the court a quo's decision, the appellant and the first respondent noted the present appeal and cross-appeal respectively.

GROUNDS OF APPEAL

The appeal involved an appeal and a cross-appeal, but, the cross appeal was withdrawn during the hearing of the appeal.

The appellant's grounds of appeal attack the court a quo's decision on the following issues:

1. Custody and maintenance of Julian, the perpetual minor;

2. Her claim for inheritance money loaned to a company from the respondent;

3. The propriety or otherwise of the decision handed down by the court a quo concerning the distribution of the assets of the parties;

4. Her claim for a lump sum maintenance payment in the sum of US$100,000;

5. The granting of absolution from the instance mero motu by the court a quo at the end of the defence case; and

6. Whether or not the respondent should be heard in view of his contemptuous conduct against proceedings in this Court, the court a quo, and its orders.

APPLICATION BY THE APPELLANT

In September 2018, the appellant made an application to adduce further evidence to prove that the respondent had, pending the determination of the appeal, interfered with and defied the High Court's orders.

We, in terms of section 22(1)(b)(ii) and (v) of the Supreme Court Act [Chapter 7:13], ordered that the matter be remitted to MAWADZE J (the trial judge), for him to conduct an enquiry into the appellant's allegations and submit a report to us.

On 3 April 2019, after holding an enquiry, in compliance with our order, MAWADZE J submitted to us his report in which he made the following factual findings:

FINDINGS OF FACT MADE BY MAWADZE J

“1(a) The perpetual minor, Julian Ronald Coumbis (born on 3 July 1994), was removed from Zimbabwe by the respondent and taken to South Africa in 2013 well before the judgment of the court on 4 September 2014.

(b) The respondent has not placed any credible evidence before this Court for such conduct.

(c) Julian remains in South Africa to date.

(d) The appellant, Philippa, has not been able to exercise any access rights in respect of Julian (the perpetual minor) as awarded to her in terms of para 3 of this Court's order.

2(a) The respondent sold two immovable properties in South Africa, being No.94 Matumi Sands and No.112 Matumi Sands and transferred them to third parties.

(b) The only available immovable property in South Africa is No.182 Shingara against which the appellant successfully placed a caveat.

3. The respondent removed all movable household goods which had been awarded to the appellant, Philippa, in terms of para 6 of this Court's order from No.6 Northwood Rise, Mt Pleasant, Harare and took them to South Africa without the appellant's knowledge or consent.

The respondent has not explained his conduct.

4. The motor vehicle, a Nissan Navara, Registration Number ABD 6847, awarded to the appellant, Philippa, in terms of para 7 of this Court's order, was taken by the Vehicle Theft Squad as it was deemed to be subject to criminal investigations for which the respondent is allegedly accountable.

5. The respondent has not done anything to remove the encumbrances on immovable properties either awarded to him or the appellant as per this Court's order.

6. After the order of this Court, the respondent transferred about USD$2.8 million from Stir Crazy (Pvt) Ltd to Incavat Enterprises (Pvt) Ltd.

7. The respondent has not complied with the maintenance order granted in favour of the appellant, Phillipa, in terms of para 5 of this Court's order and has not paid a single cent.

8. Lastly, the following assets are still available;

(a) No.6 Northwood Rise, Mt Pleasant, Harare, Zimbabwe but is still encumbered.

(b) Belgravia House, Harare but is still encumbered.

(c) No.6 Rosefrias, Avondale, Harare, Zimbabwe.

(d) No.13 Bates Street, Milton Park, Harare but is still encumbered.

(e) No.182 Shingara in South Africa.”

APPELLANT'S SUBMISSIONS ON APPEAL

In submissions before this Court, counsel for the appellant argued, that, the report to the Supreme Court, following due inquiry by MAWADZE J, dated 3 April 2019, confirmed that the first respondent was in contempt of the court a quo's order. He further submitted that such disobedience went to the root of the matter.

Counsel for the appellant further submitted, that, the court a quo's decision, on custody, was influenced by the first respondent's alienation of Julian against the appellant and that the decision does not promote a bond between the appellant and the perpetual minor.

Counsel for the appellant submitted, that, from 4 September 2014 to the last date of the hearing, the appellant had not enjoyed access to the perpetual minor because he had been removed from the jurisdiction of this court. He submitted, that, it was in the best interests of the perpetual minor that he be in the custody of the appellant.

In respect of the court a quo granting the first respondent absolution from the instance mero motu, counsel for the appellant submitted, that, the court a quo erred in view of the fact that the first respondent had made offers which were equivalent to an admission. He also submitted, that, the first respondent had given evidence of his shareholding in some of the companies which could have enabled the court a quo to distribute those shares between the parties.

Counsel for the appellant submitted, that, the distribution of the matrimonial assets was limited to three properties.

He contended that evidence led before the court a quo on these assets established that the assets belonged to companies owned by the parties. He further submitted, that, the properties had been encumbered by the first respondent, and, consequently, the appellant was disabled from acquiring any title in them in spite of their having been awarded to her by the court a quo.

In relation to the appellant's inheritance funds loaned to Stir Crazy (Pvt) Ltd, counsel for the appellant argued, that, the latter, being the respondent's alter ego, they had to be returned to the appellant by the first respondent.

He prayed that the appeal succeeds with costs.

THE FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

Counsel for the first respondent submitted, that, even though the first respondent had breached the order of the court a quo, he had a right to be heard in terms of section 69 of the Constitution of Zimbabwe 2013 (the Constitution).

Counsel for the first respondent argued, that, it was in the best interest of the perpetual minor that the first respondent be heard.

He contended, that, even if it was found that the first respondent had no right of audience before this court, there were no documents relating to the companies proving that the court a quo was handicapped in making its determination.

Regarding the issue of the court a quo granting absolution from the instance mero motu, counsel for the first respondent argued, that, the court a quo came to that conclusion because there was no evidence on the ownership of the companies as the appellant failed to present it to the court a quo.

In concluding his submissions, counsel for the first respondent submitted, that, the first respondent was withdrawing his cross-appeal.

APPELLANT'S RESPONSE

In response, counsel for the appellant contended, that, the enjoyment of the constitutional right to be heard comes with an obligation to obey court orders. He argued, that, the first respondent is in court to protect something yet he disobeys court orders.

Counsel further argued, that, the court has inherent jurisdiction in terms of section 176 of the Constitution to determine who can or cannot be heard.

He submitted, that, the perpetual minor's best interests remained with the court as the first respondent's contempt dis-entitles him from saying anything that benefits him.

Counsel for the appellant submitted that an Appellate Court does not only deal with the direct dictates of the judgment but also deals with its effects.

FURTHER SUBMISSIONS

By letter dated 31 January 2020, Musekiwa and Associates, Legal Practitioners for Doves Funeral Assurance (Pvt) Ltd, informed the Registrar of this Court that its client had bought a half share of No.6 Northwood Rise, Mt Pleasant, Harare (the matrimonial home) from a sale in execution conducted by the Sheriff and that that half share of the property had been transferred to their client on 20 February 2019.

As a result of this information, which had not been placed before us when we heard the appeal on 23 January 2020, parties were invited to appear before us on 24 June 2020 to give them an opportunity to address us on this issue. At that hearing we granted the following order:

“IT IS ORDERED BY CONSENT THAT:

1. Doves Funeral Assurance be and is hereby joined as a party to these proceedings as 2nd Respondent with Ronald John Coumbis becoming the 1st Respondent.

2. Mr Musekiwa, for Doves Funeral Assurance, is to avail documentation confirming the transfer of the half share in the property to itself and file heads of argument in connection therewith by the 30th June 2020 and serve the same immediately on the appellant and first respondent's legal practitioners.

3. Advocate Mpofu is to file additional heads of argument in response to the heads of argument filed by Doves Funeral Assurance by Friday 3rd July 2020.

4. Mr Ndlovu, for the 1st Respondent, Ronald John Coumbis, is to file his additional heads of argument, if any, by Wednesday 8 July 2020.”

In his additional heads of argument, counsel for the appellant submitted, that, the matrimonial home, which was jointly owned by the appellant and the first respondent, be awarded to the appellant who will thereafter institute proceedings in the High Court to claim back the half share sold to Doves Funeral Assurance (Pvt) Ltd.

He submitted, that, Doves Funeral Assurance (Pvt) Ltd took a risk when it bought the half share without the consent of the appellant.

The first respondent, whose conduct caused the sale of his half share to Doves Funeral Assurance (Pvt) Ltd, did not file additional heads.

In their heads, Musekiwa & Associates, for Doves Funeral Assurance (Pvt) Ltd, submitted, that, it bought the respondent's half share through the Sheriff's sale in execution after due notice had been given to the appellant. They submitted, that, the half share is no longer part of the appellant and first respondent's matrimonial assets and is no longer available for distribution to either of them.

ISSUES FOR DETERMINATION BY THIS COURT

The appellant raised several grounds of appeal, but, the material issues for determination are as follows:

1. Whether or not the first respondent should be heard in view of his contempt of proceedings of the court a quo and its orders and proceedings before this Court.

2. Whether or not the court a quo erred in awarding custody of Julian to the first respondent.

3. Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims.

4. Whether or not the appellant is entitled to claim her monetary inheritance from the first respondent.

5. Whether or not the court a quo erred in distributing the immovable property without taking into account the value of the properties.

6. Whether or not the distribution of the immovable property was fair.

7. Whether or not the appellant's claim for a lump sum maintenance payment in the sum of US$100,000 was correctly dismissed....,.

Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims

The court a quo granted the first respondent absolution from the instance in respect of the appellant's claims to a share in the South African properties, namely, 94 Matumi Sands Lonehill (Pty) Ltd; 112 Matumi Sands Lonehill (Pty) Ltd; and 182 Shingara (Pty) Ltd as well as a number of Zimbabwean assets.

The court a quo stated:

“…,. I have also alluded to the various companies in which the plaintiff did not lay any claim but were alleged to be owned by the defendant and that I should consider that fact in the distribution of the assets of the parties.

These include:

(i) Telehec Investments (Pvt) Ltd;

(ii) Natsbury Trading (Pvt) Ltd;

(iii) Bywork Intermedia;

(iv) Incavat Enterprises (Pvt) Ltd;

(v) Stir Crazy (Pvt) Ltd;

In respect of all the above properties, inclusive of the companies, I am inclined to grant absolution from the instance.

I have already alluded to the fact that neither the plaintiff nor the defendant have been able to place evidence before the court to show the shareholding of these companies, I have dealt, at length, with the evidence of the parties and explained why I believed the defendant is an untruthful and incredible witness. I, however, hold the view that the plaintiff has not been able to make out a case in respect of these assets. I am also persuaded to grant absolution from the instance because of the fact, that, as the trial commenced, but before its completion, Stir Crazy was placed under provisional liquidation and is currently under liquidation…,.

Absolution from the instance would enable the plaintiff, if she so desires, to deal with the defendant's interests in Stir Crazy and other related companies after a full public inquiry…,.

The only viable and just option is to leave the door open for the plaintiff to approach the court after a decree of divorce is granted, if she wishes, with sufficient evidence on the shareholding of both the trading and property-owning companies in Zimbabwe and South Africa…,.

Since evidence had been led in respect of these companies, I cannot leave the matter hanging but to grant absolution from the instance…,.”

The first respondent made offers to the appellant in respect of some of the properties included in the order of absolution from the instance and disclosed his shareholding in some of the companies.

Evidence on record established, that, the first respondent offered the appellant 10 percent of the Belgravia House owned by Stir Crazy (Pvt) Ltd; 10 per cent of Theright Investments (Pvt) Ltd; 20 per cent shareholding in Stir Crazy (Pvt) Ltd.

The first respondent further confirmed some of these offers during oral evidence before the court a quo where he had the following exchange with the court a quo:

“Q. I am not worried about that document you are talking about, I am worried (sic) the list of all these companies we have dealt with. You know what proof can be placed at any forum to prove ownership of a company?

A. And yet I have offered 40 percent to her my Lord.”…,.

During the same oral evidence, the first respondent conceded that he owns 80 percent shares in Stir Crazy (Pvt) Ltd; 80 percent shares in Opium Investments (Pvt) Ltd; 80 percent shares in the Theright Investments (Pvt) Ltd; 50 percent shares in 112 Matumi Sands Lonehill (Pty) Ltd; and 50 percent shares in 94 Matumi Sands Lonehill (Pty) Ltd.

It is trite, that, when insufficient evidence is led when the plaintiff closes his case, or when there is insufficient evidence at the end of a full trial, the court can grant the defendant absolution from the instance.

Absolution from the instance, in both these instances, simply means the defendant is freed from being held liable under that litigation but the plaintiff remains free to pursue his/her suit against the defendant through another suit on a subsequent occasion.

The factors to be considered in an application for absolution from the instance were discussed in the case of Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A)…, where it was held that:

“At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the court is: is there evidence upon which a reasonable man might find for the plaintiff? The question therefore is, at the close of the case for the plaintiff, was there a prima facie case against the defendant…,. In other words, was there such evidence before the court upon which a reasonable man might, not should, give judgment against the defendant?”…,.

Further, in United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…, it was held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”…,.

In casu, though absolution was granted by the court a quo mero motu after a full trial, the test of whether or not there was evidence to justify granting it still applies.

Absolution should not be granted if there is evidence on which the court can find for the plaintiff.

Absolution from the instance can be granted by a court at the close of the case for the defendant.

That this is the position at law is confirmed by HERBSTEIN & Van WINSEN's, The Civil Practice of The High Courts of South Africa, Fifth Edition, Vol 1…, where they say:

“Although there is no express provision in Rule 39 for an order of absolution from the instance at the conclusion of the whole case, the practise to grant absolution when a plaintiff has not established the facts in support of his case to the satisfaction of the court, has been extended to cases in which evidence for the defendant had also been given.”

In this case, there was an offer upon which a court, exercising its mind reasonably, could find for the appellant.

The offers made by the first respondent to the appellant are sufficient evidence to justify such a finding.

When these offers were made, it became apparent that what was offered could be awarded to the appellant.

It also became clear that the appellant had a case against the respondent in respect of the offered assets and that absolution from the instance could not be granted in cases where there was evidence of the first respondent's ownership of shares in companies the appellant had made claims against.

While it is not permissible to claim distribution of assets of companies, it is permissible to claim shares owned by a spouse in a company.

An offer is a form of an admission. The thing offered need not be proved by leading evidence.

In Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC25-12…, it was held that:

“A formal admission made in pleadings cannot be ignored by the Court before whom it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue or facts admitted. Thus, where liability in full, as in casu, is admitted, no evidence is permissible to prove or disprove the defendant's admitted liability.

The importance of the admission is that it is thus seen as limiting or curtailing the procedures before the Court; in that, where it is not withdrawn, it is binding on the Court and the Court cannot allow any party to lead or call for evidence to prove the facts that have been admitted.

See also Rance v Union Mercantile Co Ltd 1922 AD 312; Gordon v Tarnow 1947 (3) SA 525 (AD); Van Deventer v De Villiers 1953 (4) SA 72 (C); Moresby-White v Moresby-White 1972 (1) RLR 199 (AD) at 203E-H; 1972 (3) SA 222 (RAD) at 224; DD Transport (Private) Limited v Abbot 1988 (2) ZLR 98; and Liquidator of M & C Holdings (Pty) Ltd v Guard Alert (Pty) Ltd 1993 (2) ZLR 299 (HC).”

In light of the above, I find that the court a quo erred in granting absolution from the instance when the respondent had made offers to settle in respect of some of the companies and when there was evidence of the first respondent's shareholding in some companies which could be used to distribute those shares between the parties.

It was not correct for it to hold, that, the appellant had failed to prove her case in properties in respect of which the first respondent had made offers and there was evidence of the first respondent's shareholding.

The court a quo's decision, on the affected assets, should be set aside as it was premised on a misdirection.

As there is evidence on record, in the form of the first respondent's offer to the appellant and the first respondent's admitted ownership of shares in those companies, this Court is able to distribute the assets of the parties in respect of which offers were made.

This Court can distribute between the parties assets and shareholdings offered by the first respondent and his admitted shareholding in the stated companies.

In respect of Stir Crazy (Pvt) Ltd, the court a quo granted absolution because it had, while the trial was in progress, been placed under provisional liquidation and was subsequently placed under liquidation.

In my view, the court a quo correctly granted absolution from the instance in spite of the first respondent having led evidence to the effect that he held 80 percent of that company's shares and had offered to the appellant 10 percent of a property owned by it as well as 20 percent of his shareholding in it, because liquidation placed it under the control of a liquidator who was entitled to make decisions in respect of that company.

Distributing assets of a company in liquidation would be contrary to the provisions of the then section 213 of the Companies Act [Chapter 24:03] which provided as follows:

“213 Action stayed and avoidance of certain attachments, executions and dispositions and alteration of status

In a winding up by the court —

(a) No action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose;

(b) Any attachment or execution put in force against the assets of the company, after the commencement of the winding up, shall be void;

(c) Every disposition of the property, including rights of action of the company and every transfer of shares or alteration in the status of its members, made after the commencement of the winding up, shall, unless the court otherwise orders, be void.”…,.

The court a quo was therefore correct when it said:

“I am also persuaded to grant absolution from the instance because of the fact, that, as the trial commenced, but before its completion, Stir Crazy was placed under provisional liquidation and is currently under liquidation.”…,.

The court a quo, therefore, correctly granted absolution from the instance against the appellant's claim on shares and assets owned by Stir Crazy (Pvt) Ltd.

It also correctly ordered absolution from the instance in respect of properties where no offers had been made and in respect of companies in which there was no evidence of the parties shareholding.

No.182 Shingara should remain on the list of properties against which absolution from the instance was granted because it is alleged to belong to a third party (Murray, the parties first child). It can therefore only be distributed between the parties if it is proved to be an asset of the parties.

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE
Ruled By: MATHONSI J

The plaintiff, a duly incorporated engineering company which is involved in, inter alia, the manufacture of fuel tanks, instituted summons action against the defendant, a bus company, for damages arising out of a motor vehicle accident which occurred on 8 November 2009 at the intersection of Mharapara and Seke Roads in Chitungwiza.

The accident involved a Scania Horse registration number AAZ 4708 which was pulling a fuel tanker, registration number AAS 9480, both belonging to Modcraft Transport (Pvt) Ltd, another registered company which is a sister company of the plaintiff and was being driven by Vengai Mapfumo, and an omnibus, registration number AAS 4056, belonging to the defendant which was being driven by the defendant's driver, one Damascus Mutare.

I must state, that, initially, the plaintiff sued both the bus company and its driver Damascus Mutare, but, subsequently, withdrew the claim against the driver without giving any reason.

It pursued the action only against the bus company.

The plaintiff's declaration reads as follows;

“1. Plaintiff is MODCRAFT ENGINERING (PRIVATE) LIMITED, a company registered with limited liability in terms of the laws of Zimbabwe. Its address for service is that of his (sic) legal practitioners detailed below.

2. The first defendant is TENDA BUSES (PRIVATE) LIMITED. Its address for service is Number 119 Mutare Road, Msasa, Harare.

3. The second is DAMASCUS MUTARE. His address for service is that of the first defendant.

4. On 8 November 2009, along Mharapara Road and Seke Road, Chitungwiza around 0545 hours, the plaintiff's vehicle horse, AAZ 4708, and trailer AAS 9480 was involved in an accident with the second defendant who was driving, during the course and scope of his duties with the first defendant, its bus number AAZ 4056.

5. The first defendant is vicariously liable for the actions of the second defendant pursuant to the above.

6. The accident was caused by the sole negligence of the defendant in one or all of the following respects:

6.1. He was driving at an excessive speed under the circumstances.

6.2. He failed to give way to traffic which had the right of way and caused accident.

6.3. He failed to avoid an accident which was imminent.

7. As a result of the accident, the plaintiff's vehicle was damaged on its 3x12R22.5 tubeless tyres; 2 x12R22.5 tubeless rims; left hand side mudguards; front hanger; outlet pipe tank guard; left side tank.

8. The plaintiff has not repaired the vehicle and it has sourced quotations for the repairs and supply of new tyres, the lowest being US$13,800. The residue being the pre and after accident value difference is more than the costs of repairs.

9. As a result of the accident, the plaintiff suffered repair damages and supply of new tyres in the sum of USD13,800 which amount, despite damage (sic), defendants refuses (sic) fail and/or neglect to pay.”

The plaintiff then prayed for judgment accordingly.

The defendant entered appearance to defend and filed a plea in which it denied that there was a road accident as alleged by the plaintiff.

It averred, further, that, its driver was not acting within the course and scope of his employment but was on a frolic of his own when the collision occurred.

It also made more averments, including that the plaintiff's driver was not properly licenced to drive the vehicle; the vehicle did not have a certificate of fitness; and that the plaintiff's vehicle was not mechanically sound.

The matter was referred to trial on the following issues;

1. Whether the defendant was aware of the road accident.

2. Who caused the accident?

3. Whether the defendant's driver was acting within the course and scope of his employment by the defendant.

4. Whether the plaintiff's motor vehicle was properly licenced, insured, and with the relevant certificate of fitness.

5. What damages, if any, were caused to the plaintiff's truck and trailer and the quantum of those damages.

In order to prove its case, the plaintiff led evidence from two (2) witnesses, namely, Vengai Mapfumo and Freddy Hickey.

Vengai Mapfumo is the holder of a class 2 driver's licence which he obtained in 1993. He produced his driver's licence which shows that he was re-tested in accordance with the law in 2008, which retest was due to expire in 2012, and was therefore valid at the time the accident occurred in 2009.

Vengai Mapfumo testified, that, on the fateful day, he was driving a tanker, laden with petrol, just before 6pm. As he was turning at the intersection of Mharapara and Seke roads, enjoying a right of way against the Tenda Bus which was facing a stop sign, he glanced at his rear view mirror and realised that the bus had not stopped and was about to collide with his trailer which was following behind the horse.

He hooted to alert the driver of the bus, but, it was too late, as it went on to collide with his tanker trailer causing the damage set out in the plaintiff's declaration.

Vengai Mapfumo stated, that, he confronted the driver of the bus who quickly apologised to him saying that he was tired as his bus had been hired earlier on to ferry passengers and he had driven the whole day on that assignment.

After that, he had been re-assigned to ferry other passengers.

He made reference to the police accident book page where his statement had been recorded at the scene of the accident and he signed it.

He denied that his vehicle had any mechanical fault prior to the accident.

Freddy Hickey is the Managing Director of the plaintiff's company, who is hands on and runs the workshop and supervises the activities of the company.

He stated, that, the Scania horse and the trailer are owned by a sister company of the plaintiff, namely, Modcraft Transport (Pvt) Ltd which is also registered.

He made reference to the two (2) registration books of the vehicles showing that, indeed, the vehicles are registered in the name of Modcraft Transport (Pvt) Ltd of Corner Harare and Willow Roads New Ardbennie, Harare.

They are not owned by the plaintiff, neither is the fuel which was being ferried at the time of the accident.

Freddy Hickey stated, that, the plaintiff and Modcraft Transport (Pvt) Ltd are separate entities although the directors are the same. They operate from different premises.

He stated, that, the plaintiff repaired the damaged tanker after the defendant had promised to do so, but failed, and business was being lost when the tanker remained off the road.

He told of how the plaintiff had obtained three (3) quotations from panel beaters of repute for the repairs to the tanker:

Noaluc Panel Beaters & Spray Painters had quoted $15,594 for the repairs; Floyd Enterprises (Pvt) Ltd quoted US$17,814; while Adec Panel Beaters (Pvt) Ltd quoted $15,514.

The plaintiff, being an engineering concern which does the same job, weighed in with a quotation of $13,800 which was far less than what was quoted by the other repairers.

For that reason, the plaintiff undertook the job and sought to recover from the defendant, which was liable - its driver having caused the accident.

It is for this reason that the quotation of 9 November 2009, from the plaintiff, was addressed to the defendant.

Freddy Hickey produced the insurance cover note and certificates of fitness in respect of the horse and trailer to put to bed the claim, by the defendant, that, they were not insured and unroadworthy.

At the close of the plaintiff's case, counsel for the defendant made an application for absolution from the instance on essentially three (3) grounds:

(i) Firstly, he submitted, that, the plaintiff, being a separate entity from Modcraft Transport (Pvt) Ltd, the owner of the motor vehicle which was damaged in the accident, does not have a right of action against the defendant. It is the wrong party to sue.

(ii) Secondly, counsel for the defendant argued, that, the figure of $13,800 being claimed was a “thumb suck” which has not been substantiated as shown by the figure of $12,000 before VAT which has not been broken down to show what it is that the plaintiff did.

(iii) Thirdly, counsel for the defendant submitted, that, as the plaintiff's claim against the defendant is premised on vicarious liability, the decision to withdraw the claim against Damascus Mutare, the defendant's driver, was fatal to the plaintiff's case. It could not proceeded against the defendant vicariously where the employee has not been cited.

Counsel for the plaintiff opposed the application.

He submitted, that, the plaintiff and Modcraft Transport (Pvt) Ltd are intertwined; they have the same directors, and, as such, no difference exists between them.

While conceding that it was bad corporate governance to run the entities inter-changeably, given that they are both registered, he took the view, that, the plaintiff's case remains as the transport company is run like a division of the plaintiff.

On the issue of the driver, counsel for the plaintiff submitted, that, the defendant, having admitted that Damascus Mutare was the driver, the onus shifted to it to prove that he was acting outside the course and scope of his employment as such.

I am of the view that the last two (2) grounds for seeking absolution relied upon by counsel for the defendant are completely devoid of merit and should not detain us at all.

The plaintiff has led evidence and produced quotations, which have not been challenged at all, which show that three (3) other reputable panel beaters would have undertaken the repairs at a cost far more than what is claimed by the plaintiff.

For the defendant to then say that the amount of $13,800, which is significantly lower, should be proved to the last ingredient is to clutch at straws.

In my view, the defendant is lucky that the plaintiff repaired the tanker itself at less the cost and is not claiming $15,514 which was the lowest quoted figure.

The citation or lack of it of the defendant's driver, cannot be a basis for absolution from the instance.

If the plaintiff has made a case against the defendant, it matters not that the driver has not been cited, the defendant will have to disprove the plaintiff's case.

Where an application for absolution is made at the close of the plaintiff's case, what the court has regards to was stated in the leading case of Gascoyne v Paul and Hunter 1917 TPD 170 in the following:

“At the close of the case for the plaintiff, therefore, the question which arises for consideration is: Is there evidence upon which a reasonable man might find for the plaintiff?…,.

The question therefore is, at the close of the case for the plaintiff, was there such evidence before the court upon which a reasonable man might, but, should not give judgment against Hunter.”

See HERBSTEIN and Van WINSEN, The Civil Practice of the Superior Courts in South Africa, Juta & Co Ltd, 3rd ed…,.

In Bailey N.O. v Trinity Engineering (Pvt) Ltd & Others HH181-02 MATIKA J quoted with approval the pronouncement of HANCK J in Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (TK)…, where he said:

“The legal test to be applied at this stage appears to be common cause; namely, whether there is evidence upon which a reasonable man might find for the plaintiff: Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 at 409.”

In the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)…, SMITH J followed the pronouncement of BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 RLR 1 at 5D where he said:

“The test, therefore, boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

At 5-6 BEADLE CJ went on to say:

“Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that justice is done between the parties, and, so far as possible, courts should not allow rules of procedure to be used to cause an injustice.

If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say.

A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance.

I might usefully quote here what was said by SUTTON J in Erasmus v Boss 1930 CPD 204 at 207:

'In Theron v Behr 1918 CPD 443, JUTA J, at 451, states, that, according to the practice in this court in later years, judges have become very loathe to decide upon questions of fact without hearing all the evidence on both sides.'

We, in this territory, have always followed the practice of the Cape courts.

In case of doubt at what a reasonable court (might) do, a judicial officer should always, therefore, lean on the side of allowing the case to proceed.”

In casu, the plaintiff pleaded its case on the basis that it is the owner of both the Scania horse and tanker trailer which were involved in an accident with the defendant's bus.

It led evidence to the effect, that, the bus driver was negligent as he drove tired and lacking in concentration, thereby failing to observe a stop sign and colliding with the tanker.

The plaintiff also led evidence, with supporting documentation, that, the vehicle belonged to a sister company, which is duly incorporated, Modcraft Transport (Pvt) Ltd.

The driver, Damascus Mutare, was employed by the latter as he drove the vehicle on the fateful day.

In this jurisdiction, the separate legal persona concept is the cornerstone of our Company Law.

It provides, that, a company, once registered at the company registry, acquires a legal personality of its own divorced from that of its members. It enjoys perpetual succession, can sue and be sued in its own right, and, generally, stands alone outside directors or shareholders.

For that reason, no one, not even its directors or its sister incorporations, can sue or be sued on its behalf.

Like in any other legal concept, there are exceptions to the application of the legal persona principle which may result in the lifting of the veil of incorporation.

Those exceptions do not obtain in this case.

Clearly, therefore, it was incompetent for the plaintiff to sue on behalf of its sister company as it did not acquire locus standi in judicio merely by being a sister company. Nor did it gain a right of action by virtue of its close relationship to Modcraft Transport (Pvt) Ltd, the wronged party.

The plaintiff is therefore non-suited and there is no way in the world in which the court might make a reasonable mistake and give judgment in favour of the plaintiff.

The evidence led makes a very good case for Modcraft Transport (Pvt) Ltd and not the plaintiff.

In the circumstances, my hands are therefore firmly tied. In the result, I make the following order, that:

1. Absolution from the instance is hereby granted.

2. The plaintiff shall bear the costs of suit.

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:

“1. An order declaring that:

(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing therefrom, including but not limited to the removal of directors and appointment of new directors; and

(ii) The sale and transfer of Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare to 5th defendant represented by 4th defendant, are null and void;

(b) The minor children, Panashe Ralph Rushesha and Tivonge Sacha Rushesha, remain the sole shareholders in 2nd plaintiff; and

(c) The directors of 2nd plaintiff, as at 12 February 2009, remain directors unless lawfully removed or through resignation (sic).

2. An order that:

2.1 4th defendant, or, failing it, the Deputy Sheriff, takes all necessary steps to transfer Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare, back into the name of the 2nd plaintiff;

2.2 4th defendant and all those claiming occupation through it vacate 3 Justice McNally Close, Mount Pleasant, Harare within fourteen (14) days from the date of judgment; and

2.3 2nd to 5th defendants, jointly and severally, the one paying the others to be absolved: pay for an assessment and report, within fourteen (14) days of such report, by an independent property expert appointed by the High Court, of 3 Justice McNally Close, Mount Pleasant, Harare of any structural changes or damage, other than fair wear and tear, caused to 3 Justice McNally Close, Mount Pleasant, Harare since 12th February 2009 and the costs of repairs or reconstruction; and

(ii) Pay 2nd plaintiff the amount recommended within thirty days of such assessment.

3. An order barring 6th defendant from transferring the property referred to in 6 (sic) above to any third party until transfer to 2nd plaintiff is concluded.

4. In any event, costs of suit on an attorney and client scale to be paid by 1st to 5th defendants, the one paying the others to be absolved.”...,.

Turning to the merits of the claim, the background to the dispute may be summarised as follows:

The first plaintiff is a medical practitioner of Zimbabwean origin. He is presently resident in the United Kingdom together with his wife and children. He is married to the second witness, Aquilina Rudo Rushesha. They had two sons together before they moved to the United Kingdom, namely, Panashe Ralph Rushesha (hereinafter referred to as “Panashe”) and Tivonge Sacha Rushesha (hereinafter referred to as “Tivonge”).

The first defendant, Alexious Mashingaidze Dera, is his brother-in-law, being a brother to his wife.

When the trial commenced, Panashe Ralph Rushesha had attained majority age, and was, by consent, substituted as the third plaintiff.

The first plaintiff's evidence was that before he went to the United Kingdom he acquired an immovable property known as Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, also known as 3 Justice McNally Close, Mount Pleasant, Harare (hereinafter referred to as “the property”).

He asked the first defendant, who is an accountant by profession, to help him form a company in which the shareholders would be the two children mentioned above.

The second plaintiff is the company which was then established for the benefit of the children.

The reason for incorporating the company, according to the first plaintiff, was to have the immovable property registered in the name of the company.

The directors of the company were to be Acquilina Rudo Rushesha and the first defendant.

The property was duly registered in the name of the second plaintiff and was its only asset.

He stated that the name of the second plaintiff derives from the middle names of his two children. “Ra” is from the name 'Ralph; “Sa” is from the name 'Sacha'; while the “R” comes from their surname, Rushesha.

At the time that the property was acquired Panashe was ten years old while Tivonge was about a year old.

The witness paid the purchase price for the property using his own resources.

When the first plaintiff and his family moved to the United Kingdom, in 2003, they leased the property to the South African Embassy. The first defendant was their contact person on some matters relating to the property, but, the rentals were paid directly into his account.

Thus, the first defendant did not receive any rentals in respect of the property; neither did he spend any money on the property.

In or about June 2010, the first plaintiff and his family discovered that the first defendant had sold shares in the second plaintiff to the second defendant, represented by the third defendant. That discovery was only made when the first plaintiff's wife came to Zimbabwe from the United Kingdom.

They discovered that the shares had been sold for a sum of US$36,350.

Subsequent to the sale of the shares in the second plaintiff, the immovable property was then sold to the fourth defendant, represented by the fifth defendant.

The first plaintiff spoke to the fifth defendant by telephone. The fifth defendant advised him that he had purchased the property from the first defendant.

In that conversation, the fifth defendant admitted that he had known that the property belonged to the first plaintiff's wife.

The first plaintiff stated, that, different amounts were given as to the price at which the immovable property had been sold. Initially, a sum of US$90,000 was mentioned. Later on, a figure of US$125,000 was stated as having been paid for the immovable property.

The first plaintiff denied that he authorised the sale of the shares in the second plaintiff or the sale of the immovable property. He, in fact, still holds the original Deed of Transfer for the property.

The first plaintiff described the improvements on the property.

There is a house with three bedrooms. All three bedrooms have bathrooms and toilets; it has three lounges; a kitchen; and a garage on top of which is a tiled entertainment area. There are two rooms next to the garage which the witness stated that he intended to use as offices. The house is fully alarmed. There is a borehole on the property. The other amenities at the property include a gazebo; a swimming pool; a 75 metre driveway with lights; and car shades which can accommodate three motor vehicles.

The second witness for the plaintiff was Aquilina Rudo Rushesha, wife of the first plaintiff.

She is the mother of the two children, Panashe and Tivonge. She was one of the directors of the second plaintiff company at the time that it was incorporated. She never resigned her directorship. She came to Zimbabwe from the United Kingdom in June 2010. That was when she discovered that the immovable property had been alienated by her brother, the first defendant.

She approached the police to help her access the property. She also approached Gerald Mlotshwa, a legal practitioner. A meeting was held which culminated in an affidavit being prepared and sworn to by the first defendant.

The plaintiffs also called Fortune Tapiwa Chasi who is a relative of the first plaintiff's family.

He testified that he knew both the third and fifth defendants at a personal level. The witness was notified of the sale of the property to the Boka company by the first plaintiff. He spoke to the fifth respondent about the matter. From his conversation with the fifth defendant, the latter knew that the first defendant had borrowed money from the second plaintiff and used the immovable property as security for the loan.

The fifth defendant also stated to him, that, he was aware that the property did not belong to the first defendant but to the first plaintiff.

He also communicated to the third defendant, by telephone and e-mail, about the transactions relating to the immovable property. The third defendant stated to him, that, matters related to that were to be directed to his legal practitioners, and that his affairs should be separated from those of the second defendant.

The last witness called to testify for the plaintiffs was the first defendant, Alexious Mashingaidze Dera.

He was, at all material times, a director of the second plaintiff. As stated above, he is a brother to Aquilina Rudo Rushesha and a brother-in-law to the first plaintiff. Although he was cited as the first defendant he did not enter appearance to defend the matter. He only came as a witness at the instance of the plaintiffs after being subpoenaed to attend.

His testimony was that, in February 2009, he obtained a loan in the sum of US$36,350 from the third defendant in order to finance his business of purchasing sugar from Triangle for resale.

As security for the loan, the witness then entered into an agreement for the sale of the shares in the first plaintiff to the second respondent, a company in which the third defendant has an interest.

The agreement of sale was reduced to writing.

His name is recorded as the seller and beneficial owner of “the 2 issued shares in the company” the second plaintiff.

The memorandum acknowledges that the second plaintiff is the registered owner of the immovable property in dispute.

He stated that he repaid to the second and third defendants an amount of money between US$7,000 and US$10,000 in an attempt to liquidate the debt, but, could not catch up with the increasing interest which was being charged on the amount loaned.

He stated that he had known the fifth respondent as a friend prior to meeting the third defendant. He was introduced to the third defendant by the fifth defendant. He then approached the third respondent for a loan which he was duly given as stated above.

When he was having problems in repaying the loan, the third defendant approached the fifth defendant to inquire as to whether the witness had property which could be sold to raise money to repay the balance outstanding on the loan which had gone up to US$70,000.

Interest was being charged on the outstanding amount every month.

In his evidence, the fifth respondent then went and paid to the third respondent the amount outstanding. At the time that the fifth respondent paid off the amount, it had gone up to about US$90,000. The witness stated, that, the fifth defendant wanted to be paid US$100,000 for having settled the debt owed to the second and third defendants.

He deposed to an affidavit prepared by Mr Mlotshwa, a legal practitioner who had been instructed by the first plaintiff's wife, on 24 June 2010. The affidavit was produced as part of the plaintiff's documents.

The second defendant led evidence through one Simon Charehwa who is its Public Officer.

His evidence was that the second defendant, represented by Frank Buyanga, the third defendant, purchased shares in the second plaintiff from Alexious Mashingaidze Dera, the first defendant.

The witness stated, that, the person who dealt directly with the plaintiff was the third defendant.

He, the witness, was responsible for compilation of the information in the files of the second defendant.

He stated, that, Alexious Mashingaidze Dera handed over to Frank Buyanga share certificates relating to the shares as well as resolutions authorising the sale.

The share certificate, according to the witness, was taken to the United Kingdom.

The rest of the documents were kept in the file at the local office. The witness identified a document at page 7 of Exhibit 2 as the resolution which was given by Alexious Dera to the third defendant.

At the time that the transactions were conducted, he was a Clerk.

In cross-examination, he readily admitted that he was not involved when the agreement between the first defendant and the second defendant, acting through the third defendant, was concluded.

He stated that the shares in the first plaintiff were purchased for US$36,350.

He stated, that, the house in dispute, which was the only asset of the first plaintiff, was sold by the second defendant, to the fourth defendant, for a sum of US$110,000, in September 2009.

He stated, that, he knew the first defendant prior to the transaction relating to the shares of the first plaintiff as he used to render accounting services to the third defendant on a part-time basis.

The fifth defendant gave evidence on his behalf as well as on behalf of the fourth defendant.

He is a director of the fourth defendant which is a family company. He stated that he purchased the immovable property in dispute on 15 September 2009. At the time of the agreement, he was shown a Form CR14 and a Form CR6 and a resolution by one James Nqindi.

According to him, James Nqindi and Frank Buyanga were the directors of the second plaintiff at the time that he purchased the property.

He stated that he first knew the first defendant in 2007. He denied that they were friends, but that he was just someone he knew.

The witness stated, that, he had known the third defendant since 2004. He stated, that, the property was vacant at the time that he purchased it. He indicated to the Court, that, the fourth defendant was prepared to relinquish the property if it was paid back the money it had paid for the property. He stated that he purchased the property from the second plaintiff.

The fourth defendant took transfer of the property in 2010.

He described the main structure on the property as a four-bedroomed house, with four bathrooms, a kitchen, lounge, dining room and an additional lounge or office. There is an outbuilding for employees, as well as a swimming pool and a gazebo. At the time of the purchase, there was, according to him, a derelict tennis court. He removed the tennis court with the intention of resurfacing it. The property, which is about an acre, is walled and gated. The main house is partly a double storey, with a room upstairs. The main bedroom has a dressing area. There is a borehole.

The issues which were referred to trial are set out in the joint pre-trial conference minute as follows:

1. Whether or not a valid agreement of sale of shares, allegedly belonging to the minor children (herein represented by the first plaintiff), was entered into between the first and second and third defendants.

2. Whether or not the changes relating to second plaintiff's directors and shareholders, effected as a result of any such agreement, is valid. If not, whether or not such directors and shareholders should revert back (sic) to the period before the 12th of February 2009.

3. Whether or not the second defendant validly entered into an agreement for the sale of the immovable property, being Stand Number 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant with fourth and fifth defendants. If not, whether the registration of title into the fourth defendant (sic) must be set aside and the original deed reinstated.

4. Whether or not the plaintiffs have any claim for damages against the second to fifth defendants arising out of the structural alterations to the immovable property. If they have a claim, what the quantum of damages recoverable is.

5. Whether or not, if the plaintiffs succeed, the fourth defendant should remain in possession of the immovable property on the basis of a lien and until any such claim as it may have (has) been realized....,.

As regards issue number 4, no evidence was placed before the Court of the full extent of the damage to the property arising out of structural alterations to the property or the quantum of the loss occasioned by such damage.

Apart from the mention by the first plaintiff that the tennis court had been dug out, nothing more was said.

In the premises, the second to fifth defendants are absolved from the instance on that claim.

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Law Portal
Zimbabwe

Absolution from the Instance, Evidential Deficit and the Concept of Prima Facie

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA
Ruled By: MAKARAU JP

HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE
Ruled By: CHEDA AJ

SC49-16 : MONTEREY ESTATE (PRIVATE) LIMITED vs KENNY BROXHAM
Ruled By: MALABA DCJ, ZIYAMBI JA and MAVANGIRA AJA

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE
Ruled By: MAKONESE J

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE
Ruled By: MATHONSI J

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

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Law Portal Zimbabwe

Absolution from the Instance, Evidential Deficit and the Concept of Prima Facie

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED Ruled By: GARWE JA, GOWORA JA and BERE JA

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

Appealed HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD Ruled By: KUDYA J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD Ruled By: MATHONSI J

Appealed HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS Ruled By: CHATUKUTA J

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: MAKARAU JP

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS Ruled By: MAKARAU JP

SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA Ruled By: MAKARAU JP

HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA Ruled By: MAKARAU JP

HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE Ruled By: CHEDA AJ

SC49-16 : MONTEREY ESTATE (PRIVATE) LIMITED vs KENNY BROXHAM Ruled By: MALABA DCJ, ZIYAMBI JA and MAVANGIRA AJA

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO Ruled By: MAKONESE J

View Appeal HHH458-18 : THE STATE vs KIZITO MUTSURE Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE Ruled By: MUTEMA J and MOYO J

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE Ruled By: MAKONESE J

View Appeal SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD Ruled By: GARWE JA, GOWORA JA and UCHENA JA

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE Ruled By: MATHONSI J

View Appeal HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS Ruled By: ZHOU J

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Law Portal
Zimbabwe

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA
Ruled By: MAKARAU JP

HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE
Ruled By: CHEDA AJ

SC49-16 : MONTEREY ESTATE (PRIVATE) LIMITED vs KENNY BROXHAM
Ruled By: MALABA DCJ, ZIYAMBI JA and MAVANGIRA AJA

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE
Ruled By: MAKONESE J

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE
Ruled By: MATHONSI J

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J