On 11 August 2011, the plaintiff
approached the defendant for assistance in organizing cattle sales in
Beitbridge District. The parties agreed that the plaintiff would transfer
money for the purchase of the cattle into the defendant's bank account and the
defendant would withdraw the money to be used at the sale points. It was
also agreed that after the rounds of sales, the un-utilized money would be
transferred back into the plaintiff's account.
This arrangement was designed to
avoid the plaintiff's buyers handling the money for security reasons.
On 22 August 2011, the plaintiff
transferred US$300,000= into the defendant's account. The defendant began
withdrawing the money in batches and the cash movement from the defendant's
offices to the sale points was under armed police escort. Of the US$300,000=,
a sum of US$62,714=20, including levies and bank charges, was used. A sum
of $50,000= was not withdrawn from the defendant's account which means that
effectively $187,286= remained in the defendant's hands after the conclusion of
the cattle purchases on 27 August 2011; which amount the defendant was supposed
to transfer back into the plaintiff's account. On 29 August 2011, the
defendant's treasurer advised the plaintiff that there had been a burglary at
their offices on the night of 28 August 2011 and the plaintiff's money was
stolen.
The defendant refused to accept
liability for the loss of the plaintiff's $187,286= despite its alleged
negligence in keeping such a large sum of money overnight in its offices
without putting in place arrangements for reasonable and tight security to
safeguard the money - hence this civil suit. The claim is for payment of
the amount in question, interest at the prescribed rate from date of summons to
date of full payment as well as costs of suit on an attorney-client scale.
The defendant denied the alleged
negligence and averred that the security system at its premises was
adequate. The money was secured by armed police escort in transit to the
defendant's offices and lodged in a Chubb safe in a strong room in a locked
building guarded by a security guard. This was the type of security the
defendant had depended on since time immemorial.
The plaintiff led evidence from
three witnesses.
Macksen Kasora is the plaintiff's Management
Accountant. He confirmed transfer of the US$300,000= from the plaintiff's
CBZ Bank account to the defendant's Barclays Bank account on 22 August 2011 via
exhibit 1 – the RTGs form. The defendant thereafter issued the plaintiff
with a receipt – exhibit 2 – dated 24 August 2011. The money, he said, was
for livestock purchases via an auction organized by the defendant. Out of the
$300,000= only $62,710=20 was actually used inclusive of council levy of $4,053=,
LDP levy of $1,621=20 and bank charges of $3,000=. The defendant issued a tax
invoice – exhibit 3 – which shows a breakdown of the number of cattle
purchased, the various charges raised and the amount to be refunded. The
refund amount was $237,286= but only $50,000= was paid back on 12 September
2011 via RTGS leaving a balance of $187,286=. From a financial view point,
the plaintiff has the defendant's acknowledgment that $237,286= is owed by the
latter, who is the debtor and it should tell the plaintiff how it proposes to
pay it and not what happened at its offices.
Clifford Wamambo is the plaintiff's
acting Livestock Director running the plaintiff's livestock division. His
evidence largely corroborates that of Macksen Kasora. He explained that as
buyer, the plaintiff simply participated in the bidding of the cattle to be
bought but all cash handling is done by the defendant who pays the
sellers. Once the plaintiff deposits the money with the defendant, the plaintiff
is never in control of the money and where there is surplus at end of the sales,
the defendant refunds it to the plaintiff.
Young Sibanda is the plaintiff's Buyer. He
is the one who was bidding for cattle on the plaintiff's behalf at the auctions
organized and conducted by the defendant between 22 – 27 August 2011. It
was the defendant's employees who would pay the sellers. He was given
exhibit 3 at end of the auction by the defendant. He denied leaving the
money with the defendant as he never handled any.
After his evidence, the plaintiff
closed its case.
The defendant led evidence from a
single witness, Albert Mbedzi, who is the Chief Executive Officer. He has
been so employed by the defendant since January 2001. He confirmed that
the plaintiff did deposit US$300,000= into the defendant's bank account for
purposes of buying cattle at cattle sale auctions organized by the
defendant. $250,000= of that amount was withdrawn from the account to
cover sales held between 22 and 27 August 2011. The plaintiff bought a
total of 116 head of cattle. At the end of the last sale, on 27 August
2011, the defendant's staff did a reconciliation by way of a tax
invoice. If the buyer has surplus funds, the defendant pays that money to
the buyer who goes away with it. On this day he was telephoned while in
Harare and was told that the plaintiff had surplus money and had requested that
the defendant deposit that money into the plaintiff's account because the
plaintiff had no security to carry the money. He agreed to the request.
He said the defendant's security
system is very tight. The money was put in a strong-room in a Chubb safe with
an un-armed security guard stationed outside. The defendant never expected
that a robbery would take place. The guard's hands were tied and he was
put into a store room and a hole was drilled into the strong room and the safe
was cut open. He produced exhibits 4 – 8, pictures depicting a hole made
in the perimeter fence and the front yard where the security guard was
stationed (exhibit 4), a lamp holder whose lamp was removed which illuminated
the back yard (exhibit 5), entrance door to the front office which was forced
open and the strong room door and a hole drilled into the wall beside it
(exhibit 6), cash boxes strewn outside the strong room and a cash in transit
trunk ripped open (exhibit 7) and the Chubb safe inside the strong room cut
open and the safe door (exhibit 8).
He denied negligence on the
defendant's part as the defendant could not bank the money after banking
hours. The robbery was immediately reported to the police but nothing
positive came out of it. He averred that risk cannot be ascribed to the
defendant because the plaintiff had the freedom to take its money with it at
the conclusion of the reconciliation. The defendant accepted the money at
the plaintiff's risk.
The defendant then closed its case.
In closing submissions, counsel
argued on the plaintiff's behalf that it was a misnomer for the plaintiff to
plead negligence in the pleadings because money being, res fungibles, risk in it passes with delivery and consequently,
in casu, since the
defendant had custody of the stolen money it bore the risk of the
burglary. On the other hand, counsel for the defendant argued that
it is impermissible for the plaintiff to alter goal posts in the manner it
sought to do. The question of risk was never pleaded and to introduce it
now amounts to taking the defendant by surprise thereby embarrassing it.
Counsel for the plaintiff countered
averring that risk is a question of law and therefore could not be
pleaded. For the proposition that risk in money passes with delivery he
sought to rely on the following authorities: Commission of Customs and Excise v Bank of Lisbon International Ltd & Ano 1994 (1) SA 205;
Deputy Sheriff, Harare v Miriam Hwanya HH105-06; and Pahad v Director of
Food Supplies and Distribution 1949 (3) SA 695.
I, however, did not find that legal
proposition in the cited authorities applicable in the case at hand. Not
only are the facts in those authorities different from the present, hence
distinguishable, but it cannot be an absolute or strict liability legal
principle that risk in money passes with delivery. Even in cases where
strict liability attaches to a public carrier, the carrier would not be liable
if it established vis major. The
authorities are clear that robbery is a form of vis major which relieves the carrier of liability. It would
be inconsistent to find that the loss was caused by vis major and then proceed to find, in the alternative, that the
defendant was negligent and therefore delictually liable: Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt) Ltd 1994 (2) ZLR 222
(HC).
In casu, there was a robbery at the defendant's offices that
resulted in the loss of the plaintiff's money which was kept in a locked Chubb
safe which was locked up in a strong room in a locked office with a security
guard guarding the premises. In the event, there is no need to look at the
issues of risk or negligence. It would be, to my mind, a bad law that
accepts occurrence of a vis major and
then proceed to hold a defendant delictually liable on the premise of risk or
negligence.
Even the negligence that was pleaded
in this case was not proven by the plaintiff. The loss should lie where it
falls however unfortunate it may be.
In the result, the plaintiff's claim be and is
hereby dismissed with costs.
