Delictual Damages re: Economic or Monetary Loss iro Commercial, Pecuniary, Patrimonial, Loss of Income or Revenue

SC09-12 : THE COLD CHAIN (PRIVATE) LIMITED vs ROBSON MAKONI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

(c) Lost IncomeThe respondent's claim for lost income, as originally formulated in April 2001, was for twenty-four months at Botswana Pula 40,000= per month, giving a total of Botswana Pula 960,000=. However, on 18 January 2006, at the time of the trial, the period of twenty-four months was extended to sixty months, and the claim ...

(c) Lost Income

The respondent's claim for lost income, as originally formulated in April 2001, was for twenty-four months at Botswana Pula 40,000= per month, giving a total of Botswana Pula 960,000=. However, on 18 January 2006, at the time of the trial, the period of twenty-four months was extended to sixty months, and the claim in respect of lost income was increased to Botswana Pula 2,400,000=. At the end of the trial, the respondent was awarded Botswana Pula 1,800,000= in respect of this claim, the learned Judge having come to the conclusion that the respondent was entitled to claim lost income for sixty months at the rate of Botswana Pula 30,000= per month.

At the time of the road traffic accident, the respondent had been employed by Medvest Brokers (Botswana) (Pty) Ltd as an insurance agent for about five months, having joined Medvest Brokers (Botswana) (Pty) Ltd on 21 July 1999. In his evidence-in-chief, the respondent stated that as an insurance agent he earned a commission of Botswana Pula 40,000= per month. However, he later testified that the figure of Botswana Pula 40,000= was one he had negotiated with his lawyer as being the basis of his claim, although it was a conservative figure.

To support his claim for loss of income, the respondent relied upon a letter purportedly written by Medvest Brokers (Botswana) (Pty) Ltd and signed by Mr Du Plooy, a Director of Medvest Brokers (Botswana) (Pty) Ltd. The letter is dated 20 April 2000, and, in relevant part, reads as follows:

"TO WHOM IT MAY CONCERN

This letter serves to confirm that Mr R Makoni is an employee of this company on contract and has no basic salary but earns on a very high commission rate (± P40,000= per month gross)."

When the respondent was challenged about the signature on this letter, he stated that it was not the signature of Mr Du Plooy but that of Mr Du Plooy's secretary.It is pertinent to note that neither Mr Du Plooy nor his secretary gave evidence confirming the contents of the letter.

In my view, the letter clearly influenced the learned Judge in assessing the respondent's loss of earnings, because in his judgment he said:

"Evidence at hand would tend to indicate that he was earning anything between BP40,000= and BP70,000= per month."…,.

However, having said that, the learned Judge went on to say the following:

"Considering the totality of the factors mentioned above, it is my opinion that it would meet the justice of this (case) to grant (the) plaintiff loss of income based on an average earning before injury

at BP30,000= per month for a period of sixty months."

Quite clearly, the letter purportedly written by Medvest Brokers (Botswana) (Pty) Ltd and signed by Mr Du Plooy, was, on the face of it, admitted to be false, and the failure to call Mr Du Plooy as a witness was, accordingly, fatal to the claim of an average commission of Botswana Pula 40,000= per month based on that letter.

Apart from the said letter, the respondent relied upon three payment advices from Medvest Brokers (Botswana) (Pty) Ltd to support his claim for lost income. The three were produced as Exhibits 3, 16 and 17. Exhibit 3 was the payment advice for November 1999. This indicated that the gross commissions earned by the respondent, for November 1999, totalled Botswana Pula 43,677=, and that the respondent's net earnings for that month amounted to Botswana Pula 20,965=. Exhibit 16 was the payment advice for September 1999. This indicated that the gross commissions earned by the respondent, for September 1999, totalled Botswana Pula 39,716=, and that the respondent's net earnings for that month amounted to Botswana Pula 19,064=. Exhibit 17 was the payment advice for December 1999. This indicated that the gross commissions earned by the respondent, for December 1999, totalled Botswana Pula 23,596=, and that the respondent's net earnings for that month amounted to Botswana Pula 11,326=. No payment advices were produced by the respondent for July, August and October 1999, and no explanation was given for the failure to produce them.

In my view, they were probably chosen because they represented the highest amounts earned by the respondent during the five months he worked for Medvest Brokers (Botswana) (Pty) Ltd before he was injured in the road traffic accident.

Nevertheless, the three payment advices are important because they indicate the respondent's net earnings, which total Botswana Pula 51,355=. As the respondent did not produce any payment advices for July, August and October 1999, and gave no explanation for his failure to produce them, it must be assumed that he did not earn any commissions in July, August and October 1999, that his total net earnings over the five month period were Botswana Pula 51,355=, and that his average net earnings per month were Botswana Pula 10,271=.

In the circumstances, the respondent's lost income was Botswana Pula 10,271= per month. That is the figure which the learned Judge should have used in determining the respondent's loss of earnings over the period of sixty months, and not Botswana Pula 30,000=, a figure which the learned Judge appears to have plucked out of the air. The respondent should, therefore, have been awarded Botswana Pula 616,260= for loss of earnings.

1….,.

2….,.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges and lost income are allowed and the order of the court a quo is altered in the following respects –

"(i) In paragraph (a) Botswana Pula 40,000= is substituted for BP63,750=;

(ii) In paragraph (c) Botswana Pula 616,260= is substituted for Botswana Pula 1,800,000=; and

(iii) In paragraph (e) Botswana Pula 6,000= is substituted for Botswana Pula 12,000,000=."

HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD
Ruled By: NDOU J

The plaintiff has issued summons against the defendant for the return of its trailer registration number 467-556M which had been leased to the defendant and which lease agreement has now been cancelled. Despite demand, the defendant has failed and/or refused to return the said trailer. Alternatively, the plaintiff prays that the value of the trailer should be ...

Despite demand, the defendant has failed and/or refused to return the said trailer. Alternatively, the plaintiff prays that the value of the trailer should be paid to it.

The basis of the claim is that the trailer belongs to the plaintiff. Upon the expiry of the lease the trailer should have been returned to the owner.

The issues for determination were agreed upon by the parties at the pre-trial conference. These are:

(a) Whether the trailer in question was stolen at all or alternatively lost as a result of negligence or any other actionable wrong on the part of the defendant.

(b) Whether the fact that the trailer was supposed to be insured absolves the defendant of his duty of care and/or risk in respect of the said trailer.

The onus of proof for issues (a) and (b) is on the defendant and (c) on the plaintiff.

The plaintiff called Martin Jonathan Rowland as a witness. He is the Managing Director, Commercial and Industrial Holdings of the plaintiff company. He said at the time of the transaction, Mr Mhaka dealt with the late Mr Schoffield. At some stage, the plaintiff became aware of the fact that vehicles leased out to the defendant were not being properly maintained and they were damaged in some instances. When they realized that the agreement was not working, they called for the return of the final vehicle i.e. the trailer subject matter of these proceedings.

The defendant informed them that the vehicle had been stolen. The plaintiff was only informed, in 2003, that the trailer was stolen. He said the duty to insure the trailer was on the plaintiff company. Although the risk of loss was on the plaintiff company, he said the defendant had a duty to timeously inform the plaintiff of the theft, which the defendant did not do in this case. This deprived the plaintiff company the right to claim from its insurers and this seems to be the argument.

This witness said if the report of theft had been made to the late Mr Schoffield, the latter would have reported at their company monthly meetings where legal issues are discussed. He said for an insurance claim to be made, the defendant was supposed to give full details of the theft and do so on time. He said the defendant did not provide the date of the theft. They were not provided with police initial report details. They were not sure whether the trailer was stolen or not. They demanded the return of the trailer, failing which replacement value of the trailer.

Under cross-examination, he conceded that there is no clause in the agreement which imposes a duty on the defendant to report theft to the plaintiff, let alone doing so timeously. He stated that the plaintiff did not, on its own, report the theft of the trailer to the police because they were not sure there was a theft; it was up to the defendant to report as the custodian of the trailer. When asked whether the plaintiff had bought a replacement trailer he said it was difficult to say because the plaintiff buys trailers regularly but from 2002 they bought trailers in 2004.

The plaintiff also called Dabpson Kanyoka, the Bulawayo Branch Manager, Zimnat Lion Insurance Company. He placed the value of the trailer at $20 million at the time he testified. Under cross-examination he conceded that he is not an expert in such assessments and that he relied on assessments done by engineers.

His testimony does not take the matter any further.

The plaintiff then called Vongai Gapare, a former senior underwriter at Zimnat. She authored the letter, exhibit 3, which gave the current market value of the trailer as Z$2.2 million in September 2006. She conceded that she did not consult the experts as the matter was urgent. She said she just used “information at hand” to arrive at that figure. She, however, later consulted an engineer who placed the value at $9 million.

Her testimony does not take the matter any further. Her evaluation is “off-the-cuff” and she is not, in any event, an expert in the field.

The plaintiff then called Bhekimpilo Moyo. He said he does vehicle valuation in assessments. He is a qualified vehicle body repairer and has been in the industry for over ten (10) years. He did a desk evaluation for the trailer in question at the behest of Zimnat Lion. He arrived at the conclusion that a similar trailer would be valued at Z$9,5 million.

The Managing Director of the defendant company, Amos Mhaka, testified. He said at the time the agreement was entered into it was not explained to him that he had a duty to notify the plaintiff on time of any theft or loss of the trailer. He said this was not put in black and white either. He said the trailer was stolen and he reported the theft to the police. He took the police reference number to the late Mr Schoffield. He said the trailer was stolen between August and October 2004. He said the trailer was stolen when it was en route from Harare to Bulawayo. The trailer developed mechanical problems around Battlefields area. His employee, the late Jonathan Mhlanga, was driving at the time. When Jonathan became aware of the theft of the trailer, he reported the matter to Battlefields Police before he contacted him.

The late Constable Mashati was dealing with the matter and he required that the registration book and the insurance policy be submitted. This information was recorded by then Constable Mushati on a piece of paper. When Jonathan Mhlanga gave him this piece of paper he (i.e. the witness) telephoned Mr Schoffield and eventually went to see him at his Harare office. Mr Schoffield told him that he had some urgent business to attend to in Mutare and told him to leave the police reference note in his office and he indicated that he would attend to the matter. When, in 2003, the defendant started receiving letters from the plaintiff demanding the return of the trailer, he assigned a driver to get the police reference details at Battlefields Police Station. The driver was informed that the police detail dealing with the matter had passed on. He said this demand for the return of the trailer was after he had given the police reference to the late Mr Schoffield. He did not keep a copy thereof.

He said that at the time of the issuance of summons in this matter the defendant was no longer paying rental for the trailer. The defendant last paid rentals in 2002.

Under cross-examination it became apparent that he was not being truthful on the fate of the piece of paper allegedly obtained from the late Constable Mushati. Whilst in his testimony, as alluded to above, he said he gave it to the late Mr Schoffield, in the pleadings it is the defendant's case that it was lost or misplaced. In fact, the pleadings are that the original was given to Mr Schoffield and he remained with a copy yet he now disputes ever remaining with a copy.

This discrepancy is on a material issue of whether the plaintiff was ever notified of the alleged theft prior their demand for the return of the trailer.

Mr Mhaka is the sole witness for the defendant.

As alluded to above, he confirmed the existence of the lease agreement and that he personally dealt with the plaintiff concerning this lease agreement. He, however, does not have first-hand knowledge of the theft of the trailer. He never personally made efforts to verify whether or not the driver had indeed made a report to the police. All his evidence around that issue is hearsay.

The driver of the truck on that day in question is Jonathan Mhlanga who is late. The other person who could have enlightened the court about the police report is a constable who is also late.

He said enquiries made at the Battlefields Police Station by the defendant have not yielded anything. There is no record at the police station that any report was ever made.

Against this background, the plaintiff denies that the trailer was stolen and demands that the defendant should prove that fact by at least producing a police report.

Mr Mhaka does not have anything in his files on the police report i.e. references. Mr Mhaka said he notified director, Mr Schoffield, who, like other key witnesses, is late. The late Mr Schoffield did not usually deal with such matters and Mr Mhaka could not give a satisfactory explanation why he did not deal with the other officials with whom he had dealt with on a day-to-day basis before. He simply gave the reasons that the relations between them had soured hence the need to deal with defendant's director, Mr Schoffield.

It seems highly unlikely that people who only know all the evidence of whether or not the trailer was stolen and the police report that was made, and Mr Schoffield, have taken those secrets to their graves. It is also highly unlikely that upon receiving information about the theft of the 20 tonne trailer, which was so central or important to the business and the particular contract, Mr Mhaka would not himself have personally made a follow-up. This is moreso in view of the fact that the relations between the plaintiff and the defendant have soured.

Mr Mhaka confirmed, under cross-examination, that at that point he did not trust the plaintiff as he felt that they had treated the defendant badly before. He felt that the plaintiff had swindled the defendant on the payment for the trailer. All this is more reason why he should have been more meticulous in keeping records and in dealing with the plaintiff.

In short, the defendant has failed to discharge the onus resting on it to prove the theft.

It is common cause that the plaintiff would be responsible for insuring the trailer and not the contents of the trailer. The trailer was insured according to the evidence of Mr Rowland. A claim could not be made because a report to the plaintiff was not made timeously. To date, there is no evidence of any police report - which is the main requirement of the insurers. In any event, this is neither here nor there and does not have a bearing on this matter;

(i) Firstly, the defendant has not proved, on a balance of probabilities, that the trailer was stolen. As alluded to above, such onus was on the defendant.

(ii) Secondly, even if it was, the plaintiff was not timeously informed of the alleged theft.

(iii) Thirdly, even if the plaintiff had been informed, this would not absolve the liability of the defendant.

In Principles of Delict by JONATHAN BURCHELL (1993), Juta & Co…, the learned author rightly stated:

“The general principle underlying the award of damages under the aquilian action (and the law of delict as a whole) is one of compensation to the plaintiff. But, frequently, a person injured may have his losses partially or wholly met from outside or collateral sources other than the said damages. Examples of such collateral benefits are: gifts or donations, pension, sick pay benefits, insurance (both indemnity and none indemnity) and medical and…,.

The general rule is that the receipt of money by the plaintiff from an insurance company is not deductable from his damages. The plaintiff has to exercise foresight in taking out insurance cover, for which he has paid premiums on a regular basis and shall not be deprived of the benefit of the cover. Nor should the defendant be spared for liability for his negligence simply because he has, by chance injured a foresighted individual whose losses are covered by insurance.”

Within the context of indemnity insurance, with the rules of subrogation applying, the insurer, once it has paid out the insurance cover to the plaintiff, is placed in the shoes of the plaintiff and can pursue the claim against the defendant to recoup its own loss. In so doing, the insurer can claim in the name of the plaintiff.

It is clear, therefore, that the negligence of the defendant is not absolved by the new effect insurance – Mackenzie v SA Taxicab 1910 WLD 323 and Dippenaar v Shield Insurance Co. 1979 (2) SA 904 (A).

Benefits in terms of indemnity insurance, which a plaintiff has received or will probably receive on account of his loss, are seen as res inter alios acta i.e they are not taken into account in reducing his damages – Ackerman v Loubser 1918 OPD 31; Teper v McGees Motors 1956 (1) SA 738 (C); Van Dyk v Cordier 1965 (3) SA 723 (O); Law of Delict by J NEETHLING, J M POTGIETER and P J VISSER (2^nd Ed).., and A Guide to the Zimbabwean Law of Delict by G FELTOE (3^rd Ed)..,.

All in all, the defendant remains in possession of the plaintiff's trailer and has not returned it.

In the absence of any other probable explanation, which is supported by direct evidence, an award must be made in favour of the plaintiff.

On the question of the quantum of damages the onus is on the plaintiff.

Different valuations of the trailer were given during the pleadings and the trial on account of the rapid escalating rate and re-denomination of the currency. The Zimbabwean dollar is no longer in use. The court has taken judicial notice of this notorious fact – Ndawana v Nasho & Ors 2000 (1) ZLR 23 (H) and Reza v Nyangani 2001 (1) ZLR 202 (S). This court has to strive to arrive at an equitable remedy based on recent valuation. The difficulty is that the recent value given during the trial was denominated in Zimbabwean dollars which is no longer in use. The court has to find a way of obviating the problem created by this intervening event.

Accordingly, it is ordered that:

(1) The defendant be and is hereby ordered to return the plaintiff's trailer registration number 467-556M within seven days of service of this order.

(2) Failing compliance with paragraph (1) above, the defendant is hereby ordered to pay the plaintiff the current market value of a similar trailer as assessed by the average of evaluations of three independent qualified motor vehicle evaluators, with interest on the figure tempore morae from 16 March 2005.

(3) The defendant will bear the costs of this suit on the ordinary scale.

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

As regards the value of the lost property, the plaintiff established beyond question, through relevant invoices and WayBill, that the missing property was valued at US$44,202=50. In the result, the plaintiff's claim can only succeed. It is accordingly ordered that: 1. The defendant be and is hereby ordered to pay the plaintiff the sum of US$44,202=50..., being damages for ...

HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI
Ruled By: MAVANGIRA J

The second plaintiff's claim, as amended, is for loss of support for herself and on behalf of her minor children in the sum of USD15,840= and funeral expenses in the sum of Z$34,336,000=. The second plaintiff then gave evidence. She said that she was customarily married to the deceased, Emmanuel Chigwida, who died as a result of the ...

HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI
Ruled By: MAVANGIRA J

1. ...,. 2. ...,. 3. Judgment is granted in favour of the second plaintiff against the first and second defendants jointly and severally, the one paying the other to be absolved, in the sums of: (a) USD4,752= (Four thousand seven hundred and fifty two United States Dollars). (b) Interest on the said amount at the rate of 5% per annum ...

HH196-10 : MONDAY BOPOTO NYANDORO vs MINISTER OF HOME AFFAIRS and COMMISSIONER OF POLICE
Ruled By: PATEL J

Before his injuries, he was self-employed as the Director of a rural supply company, ferrying goods from Harare and selling produce from horticulture farming. He used to derive the equivalent of US$460= to US$550= per month from both of these occupations. He is now unable to continue with either occupation because of his injuries. His ...

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HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED
Ruled By: KUDYA J

The plaintiff also sought US$2,000= per month as the reasonable cost of hiring a replacement motor vehicle for his use in his farming activities. He produced Exhibit 10, an Agreement for the hiring of a vehicle at the rate of US$2,000= that he executed on 1 October 2008 with Mbudaya Enterprises (Pvt) Ltd for ...

HH228-10 : CAROLINE MABAIRE vs SHEPHERD JAILOSI and THE MINISTRY OF TRANSPORT AND COMMUNICATIONS
Ruled By: KUDYA J

The plaintiff sought damages in the sum of US$144,000= for her personal loss of support and US$66,000=00 for the loss of support of her three minor children with the deceased. In her declaration, she placed the retirement age of the deceased had he lived at sixty-five (65). As he died at fifty (50), her claim ...

The plaintiff sought damages in the sum of US$144,000= for her personal loss of support and US$66,000=00 for the loss of support of her three minor children with the deceased.

In her declaration, she placed the retirement age of the deceased had he lived at sixty-five (65). As he died at fifty (50), her claim traverses a period of fifteen (15) years. She further averred that the deceased spent US$800= per month in maintaining her and US$500= per month in maintaining each child. She them multiplied these amounts by the number of months it would take him to support each child to its majority year and for fifteen (15) years for her to arrive at the totals she sought.

Loss of support for the children

She testified that the tuition for the Form Four child was US$1,090= per term. She produced…, the school fees invoice for Rumbidzai, a boarder at Hillside High School. The invoice indicates that tuition and boarding fees are in the sum of US$950= while uniforms cost US$150=. The invoice for the twins…, shows that the school fees for each child was pegged in the sum of US$295= a term. She produced…, a quotation from a Harare-based school uniform stockist dated 11 June 2010 indicating the cost of the school requirements of each girl of US$569= and for the boy of US$617=. She indicated that she spends US$400= per month on food and tuck for the school children; she spends US$40= every term on fuel in visiting the children at school once a term. Her other expenses are US$80= a month on the maid, US$200= a month on fuel, US$70= a month for the telephone, and US$400= a month on rentals inclusive of water and electricity. Her children used to go on holiday twice a year during the April and December school holidays. She would need US$3,000= a year for the local holidays in Kariba, Nyanga and Victoria Falls for the children.

Construction business

She stated that her late husband was a builder by profession. He would buy undeveloped stands and build and then dispose of the developed property. She produced three Agreements of Sale of the properties that he developed and sold…,. These were the property in Ruwa that was sold for a cash sum of ZW$66,000= on 17 November 2000; the property in Katanga in Norton that was sold for the cash sum of ZW$700,000= in March 2001 and the property in Good Hope, Marlborough, Harare that was sold for ZW$4,200,000=, revalued, on 24 August 2006. She estimated, with great difficulty, the profit margin from the construction business at 25 per centum.

Farming

He was a commercial farmer. He commenced to grow tobacco in 2003 at the family farm in Chivhu. He grew tobacco on three hectares; had three permanent workers but would hire seasonal labour on a needs basis. She produced the fourteen-paged Zimbabwe Industry Tobacco Auction Centre…, sales statements of the tobacco deliveries made by the deceased as exhibit 6. The long and shot of exhibit 6 was that in the 2005 selling season the deceased delivered a total of twenty-three bales weighing 1,430kgs sold at an average of US$0=7152 per kg. It also shows that in the 2006 selling season the deceased sold a total of ten bales with a mass of 543kgs at an average of US$0=98 per kg. The farm was, however, repossessed by her mother-in-law after her husband's death.

He was also a poultry farmer. He would order 500 chicks every month. He reared 300 chicks at the farm and 200 at his Harare home. He would sell the grown broilers after 7 weeks to outlets in Harare. He sold an average of 400 birds a month. She produced three purchase orders from three customers who purchased the broilers from the deceased…,.. These were a Farm and City cash receipt dated 1 June 2006 for the purchase of 300 broilers; a purchase order by Metro Café dated 24 July 2006 for 91 kilograms of chicken and another purchase order from Four Girls Enterprises of 1 August 2006 for 28 birds.

After her husband's death she carried on with the poultry project, but at a reduced rate. She rears both layers and broilers.

It is well to remember that damages for loss of support constitute general damages, and, as such, are calculated as at the date of judgment. See Biti v Minister of State Security 1999 (1) ZLR 165 (SC)…,; Graaff v Speedy Transport 1944 WLD…,; and The Quantum of Damages in Bodily and Fatal Injury Cases by CORBETT, BUCHANAN and GAUNTLETT 3^rd ed…,. The locus classicus case on the point is Jameson's Minors' v Central South African Railways 1908 TS 575….,. At p602 INNES CJ stated that -

“There only remains the question of damages, and it is one of the most difficult points in this case. The general principles which should guide us are plain. I need only refer to VOET, who lays down the rule very clearly. He says (9, 2, 11 ):

'According to the modern practice the scope of this action' - that is, an action by the widow or children of a man who has been killed through the default of another- 'has been extended, in as far as an action is now allowed to the wife and children of any husband or father killed through another's default, for such damages as the equity of the judge will determine, account being taken of the maintenance which the deceased would have been able to supply, and had usually supplied, out of his labour, to the wife and children, or to other near relatives.'

I do not think VOET intended to restrict, or that we should restrict, the word 'maintenance'- victus - to the supply of mere necessaries of life. It must include all the material advantages, conveniences, comfort and support, which the father would have afforded the claimants, but for his death. The language used shows that the court must pay regard to what the deceased had been used to supply in the past-that is, to the station in life of the parties, and the comforts, conveniences and advantages to which they had been accustomed. Only actual material loss can be taken into account in an action of this kind. The court is not justified in awarding compensation for a shock to the feelings, or in granting relief on any sentimental ground. But clearly, the plaintiffs are entitled to compensation for the pecuniary loss involved in a reduced income, and a restricted provision for the supply of what they have been accustomed to, and could reasonably have anticipated that the deceased man would continue to supply. Our law lays down no hard and fast rule for such a calculation. It leaves a large discretion to the judge to award what, under the circumstances, he considers right.”

Again, in Hulley v Cox 1923 AD 234…, the LEARNED CHIEF JUSTICE affirmed these views when he stated that -

“Some authorities consider that the calculation should be based upon the principle of an annuity (see GROTIUS 3 33 2; MATTHEUS, DE CRIMINIBUS, 48 5 11). VOET, on the other hand, favours a more general estimate. Such damages, he thinks, should be awarded as the sense of equity of the judge may determine, account being taken of the maintenance which the deceased would have been able to afford and had usually afforded to his wife and children (Ad PAND 9 2 11). That would seem the preferable view as giving a greater latitude to deal with varying circumstances. It is, at any rate, desirable to test the result of an actuarial calculation by consideration of the general equities of the case.”

And yet again, HOLMES JA crystallized these overall principles in Legal Ins Co Ltd v Botes 1963 (1) SA 608 (A)…, thus -

"The remedy has continued its evolution in South Africa - particularly during the course of this century - through judicial pronouncements, including judgments of this Court, and it has kept abreast of the times in regard to such matters as benefits from insurance policies. The remedy relates to material loss 'caused to the dependants of the deceased man by his death.' It aims at placing them in as good a position, as regards maintenance, as they would have been in if the deceased had not been killed. To this end, material losses as well as benefits and prospects must be considered. The remedy has been described as anomalous, peculiar, and sui generis - but it is effective. In assessing the compensation, the trial judge has a large discretion to award what, under the circumstances, he considers right. He may be guided, but is certainly not tied down, by inexorable actuarial calculations. In its present form, robust and practical, the remedy illustrates the growth and flexibility of the system of law, basically Roman-Dutch."

These views have been followed and applied in a number of decisions in both Zimbabwe and South Africa. In fact, the practical steps in estimating the damages for loss of support that are set out by CORBETT, BUCHANAN and GAUNTLETT in The Quantum of Damages in Bodily and Fatal Injury Cases 3^rd ed…, affirm and are largely based on these sentiments. In all the decided cases on loss of support that I have consulted, the plaintiffs either relied on medical or actuarial evidence; or on the general evidence of the deceased's earning capacity prior to his or her death or on both. In this jurisdiction actuarial evidence was adduced in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S)…,. In Rusike v Tenda Transport (Pvt) Ltd & Anor 1997 (1) ZLR 495 (HC) BARTLETT J referred to the actuarial method and the future earning capacity with contingencies discounted method as some of the ways that may be used to establish damages for loss of support.

Quantum of damages

Counsel for the plaintiff urged me to award damages for loss of support based solely on the proven expenses of the plaintiff. He relied on Lebona v President Versekeringsmaatskappy Bpk 1991 (3) SA 395 (W).

The facts in that case were that the plaintiff, the widow of a man who had been her partner in a customary union, claimed damages for loss of support after her husband's death, which had been caused by the negligence of a driver insured by the respondent. The dispute involved, inter alia, the question of whether the deceased had been under a legal duty to maintain the plaintiff. It appeared from the evidence that the deceased had been a hawker who had practiced his trade without the necessary licence. FLEMMING J held that in resolving the above dispute, two questions had to be answered:

(a) Whether a maintenance court would have held that the deceased had a duty to maintain the plaintiff; and

(b) Whether the said court would, in the circumstances, have made an order for maintenance.

He further held that as the deceased had earned his income in an unlawful manner (a) had to be answered, not with reference to the deceased's earning capacity, but with reference to his actual income.

It seems to me that that case does not support the submission made by counsel for the plaintiff for FLEMMING J went further to determine the earning capacity of the deceased in a bid to estimate the loss of support.

In my view, while the level of maintenance that the deceased used to give to his widow and children is important, the court cannot use the expenses incurred by the plaintiff to calculate the loss of support without reference to the deceased's earning capacity. This is because it is a basic fact of life that expenses may often be much higher than a breadwinner's earning capacity. Thus, to use the expenses to calculate the estimated loss of support may distort the award for loss of support to the prejudice of the defendant, and, in my view, would amount to an improper exercise of the court's discretion.

It is apparent that the plaintiff was supported by her husband. Her salary as a teacher would have been inadequate to cater for the high standard of living she was accustomed to. She lived in an upmarket accommodation which had a 3- bedroom guest wing and which property she is renting out for US$1,000=. She lives in a smaller property for which she pays US$400= inclusive of water and electricity. She makes a profit of approximately US$600= on her rental account. This profit, in my view, would be adequate to cater for the insurance and maintenance costs of the matrimonial property and the municipal rates and taxes that are borne by the owner. I will not discount from the final award that I will grant her any gain she makes on the rental account because her decision to move to a cheaper accommodation was triggered by her failure to meet the expenses of maintaining the matrimonial home such as the municipal and electricity charges that were levied in foreign currency. She lost the prestige, conveniences and comfort associated with residing in her large house. The gain she makes compensates for the fall in her standard of living occasioned by the death of her husband.

Her evidence, that she used to derive benefit from the sale of 400 chickens but presently benefits from the sale of 150 chickens after the repossession of the farm by her mother-in-law, was not challenged. Her loss of income from the loss of 350 chickens at a profit margin of US$2=50 a bird amounts to US$875=00 a month. I would have to discount availability of chicks and other vicissitudes that could possibly affect the rearing of chickens and would reduce the expected profit to approximately US$600= a month. The material loss over a 15-year period would be approximately US$108,000=.

The loss of the farm affected the tobacco income. The average kilograms sold were approximately 1,000= a year. The price would depend on the quality. It could rise to as much as US$4= per kg in the market. It would be fair to estimate that he would have produced tobacco worth a dollar per kilogram. He would have earned a gross income equivalent to US$1,000= a year from the sale of tobacco. The plaintiff did not lead any evidence on the cost of producing this amount of tobacco. I have decided, as I am permitted to do, to pluck a figure out of the air of the cost of producing the tobacco of 50 per centum. Over 15 years she would have lost US$7,500= from growing tobacco.

She lost income from the cessation of the development of immovable property. It does not appear that he operated a company, so the principle enunciated in Cattle Breeders Farm (Pvt) Ltd v Veldman 1974 (1) SA 169 (RAD) that should be regarded as its alter ego would not apply. The properties were not sold in the name of a company. One was sold in the deceased's name and the other two in both the deceased and the plaintiff's names. The plaintiff did not adduce evidence on the costs incurred in developing the properties. She plucked from the air a profit margin of 25 per centum. I am prepared to accept it. The first property that he developed and disposed of was the Ruwa property. The Agreement of Sale indicates that it was sold on 17 November 2000 for a cash sum of ZW$66,000= in local currency. At the time the official exchange rate of US$1= was ZW$38=. The deceased grossed in Zimbabwe dollars the equivalent of US$1,736=84. The second property, the Katanga property, was sold in March 2001 for ZW$700,000=. At that time the official exchange rate of the Zimbabwe dollar to the United States dollar was 55:1. The amount was equivalent to US$12,727=27. The last property to be sold was the Marlborough property. It was sold on 25 August 2006 for the sum of ZW$4,200 000= revalued. The sale took place after the first revaluation of the local currency of 1 August 2006 which saw the removal of the three zeroes from the Zimbabwe dollar. After the revaluation in August 2006 the Zimbabwe dollar was pegged to the United States dollar at the rate of $250= revalued to US$1=. The deceased received the equivalent of US$16,800=.

These calculations reveal that over a period of six years the deceased received a gross sum equivalent to US$31,265=. I have accepted that he made a profit of at least 25 per centum from the gross receipts; which was equivalent to US$7,816=25. His average profit over the six year period would have been equivalent to US$1,302=71. This would translate to the sum of US$19,540=65 over the fifteen years of active life that still awaited him. I would add the prospective proceeds from the tobacco crop of US$7,500= and the loss of the chickens sold of US$108,000= to this figure and arrive at a total of US$ 135,040=. I would round it off to approximately US$135,000=.

In my view, this would have been the amount which would have been equivalent to the material loss suffered by the plaintiff from the premature death of her husband at the hands of the defendants.

I do not, in the exercise of my discretion, for reasons already advanced above, intend to discount for any capitalization of this amount. I would, however, in the light of the sentiments expressed in the Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S) case discount for contingencies at the rate of 20 per centum. This would leave an amount for loss of support for the plaintiff and her children of US$108,000=00.

Disposition

Accordingly, it is ordered that the defendants shall pay to the plaintiff, jointly and severally, the one paying the other to be absolved:

(a) The sum of US$108,000= together with interest thereon at the rate of 5 % per annum from the date of judgment to the date of payment in full.

(b) Costs of suit.

View Appeal
HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

If it breached the terms and conditions of the lease agreement; whether or not the defendant suffered damages as a result of such breach and the quantum of such damages Page 66 of exhibit 1 represents an extrapolation from the Pharmaceutical Batch Book of seven products manufactured by the defendant at the leased premises and ...

If it breached the terms and conditions of the lease agreement; whether or not the defendant suffered damages as a result of such breach and the quantum of such damages

Page 66 of exhibit 1 represents an extrapolation from the Pharmaceutical Batch Book of seven products manufactured by the defendant at the leased premises and at the new premises from 2000 to 2010. The seven products listed were gulf gripe mixture, menthies cough syrup, glucopect suspension, super zestamin multi-vitamins, menthies lozenges, energen glucose and darrolyte tablets. In 2008, the defendant did not produce any glucopect or super zestamin but produced fewer batches for the other five products. In 2009, it produced a reduced number of menthies lozenges and energen glucose and did not manufacture any batches of the other five products. It did not manufacture any products from the leased premises in 2010. Dr Neil Robin Deacon calculated the total batches for each product produced over the ten year period from 2000 to 2009 and divided it by ten to calculate a yearly average. He estimated the cost of production of each batch in United States dollars by interpolating the existing cost structure at its new premises of each product range and multiplied the estimated cost by the yearly average to calculate the gross value of the lost production. He opined that the cost structure of existing sales was the same in United States dollars as in the preceding ten years. He then deducted the salvage value of work in progress to arrive at the loss suffered by the defendant. He calculated the loss from the seven products at US$197,925=. He deducted the profit mark-up of 15% and arrived at an estimate of US$168,236=25 which he rounded off to US$170,000=.

While Dr Neil Robin Deacon equated this amount to the defendant's turnover, it seems to me that it would actually represent the defendant's total expenditure.

Dr Neil Robin Deacon stated that the defendant ceased the manufacture of pharmaceuticals in July 2008. It continued to manufacture confectionaries until July 2009. It suffered loss from the failure to produce the pharmaceuticals. Even though there was no production of pharmaceuticals for the period from July 2008 to April 2010, a period of 21 months; the defendant claimed damages for breach equivalent to 12 months of lost production. This was firstly because the defendant did not claim lost production for the period from July 2008 to the end of November 2008, secondly it abandoned the claim for December 2008 and January 2009 because the multicurrency regime had not yet come into being, thirdly it abandoned lost production for three of the months of the multicurrency regime in order that its estimated figure would accord with its yearly average computation.

The use of turnover as a basis for calculating the loss of profit suffered after the repudiation of an agency of sale was approved by INNES CJ in McCullough & Whitehead v Whiteaway & Co 1914 AD 599…, a local case which went on appeal to the Appellate Division in South Africa.

HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS
Ruled By: MATHONSI J

Hillary Simbarashe testified that the Scania is a 66-seater bus engaged in cross border business. The fare is US$15= per passenger meaning that a full load would gross US$990= (one way trip). Factoring in the expenses, including fuel, of US$350= would leave a net of US$640=. He stated that instead of claiming that amount, the ...

HH55-14 : PRINCE CHINEMBIRI and PARADZI MUPANDENYAMA and ALEXIO TEMBO and KUDAKWASHE PFUNDE and CLEMENCE SHAMU and ORCHARD KANJADO vs CHANCE NCUBE and DANIUS RUNGANO and ZETDC
Ruled By: MATANDA-MOYO J

Loss of earnings; The second plaintiff claimed US$70,122=. The second plaintiff based his claim on the fact that he operates three General Dealer shops and butcheries and claims he was earning an average of; (i) From Shops +/- $2,000= per day per shop; (ii) From Butcheries +/- $500= per day per shop; (iii) That he lost one hectare of ...

Loss of earnings;

The second plaintiff claimed US$70,122=. The second plaintiff based his claim on the fact that he operates three General Dealer shops and butcheries and claims he was earning an average of;

(i) From Shops +/- $2,000= per day per shop;

(ii) From Butcheries +/- $500= per day per shop;

(iii) That he lost one hectare of potatoes and nothing was recovered. Lost US$+/-$15,000=; and finally

(iv) That he had 3,220 pigs of which 102 of them died due to neglect and the plaintiff lost US$11,220= as a result.

The assessment of an appropriate award for loss of earnings/profit is not as easy as just multiplying figures. There are several contingencies that must be taken into account. Where there is insufficient evidence on the exact figures to use the court is still enjoined to make an award. In Santam Insurance Co Ltd v Paget 1981 ZLR 73 A the court held that:

“A court should make some award in cases where damages are claimed for loss of future earning capacity if it is satisfied that the plaintiff has suffered such a loss, even where there is insufficient information to assess the loss accurately and the court has to pluck a figure out of the air.”

I make the above averment because the evidence led by the second plaintiff did not state the sales at the relevant time when he was in hospital. Further, the books produced by the second plaintiff are not books of accounts hence I did not place much reliance on them.

In assessing loss of earnings, there are certain considerations to be taken into account.

In casu, the plaintiff was not rendered vegetative or useless. His mental functions are fully functional. He can delegate duties and be an effective manager for his businesses.

As for the potato field which was lost amounting to US$15,000= and US$11,220= for the 102 pigs which were lost; such special damages are regarded in law as being too remote to be recoverable. See the case of Holdene Brick Works (Pvt) Ltd v Roberts Construction Co Ltd 1977 3 SA 670 (A)…,.

The second plaintiff lost both arms and there will be limits to the nature and extent of activities he can engage in. I will award that loss in a progressive manner. An award of US$10,000= will meet the justice of the case….,.

(i) …,.

(ii) …,.

(iii) $10,000= being damages for loss of profit and earnings.

HH20-10 : CHRISTOPHER GWIRIRI vs STARAFRICA CORPORATION (PRIVATE) LIMITED t/a HIGHFIELD BAG (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

Loss of future earningsIt is common cause that as a result of the disability, the plaintiff was discharged from the defendant's employment on medical grounds. That discharge was accompanied by a loss of salary and other benefits that employees in his grade were entitled to. Unfortunately, no evidence was adduced as to the salary such ...

Loss of future earnings

It is common cause that as a result of the disability, the plaintiff was discharged from the defendant's employment on medical grounds. That discharge was accompanied by a loss of salary and other benefits that employees in his grade were entitled to.

Unfortunately, no evidence was adduced as to the salary such a grade was entitled to from the time of his discharge.

The plaintiff claimed a sum of USD$30,000= for loss of earnings. He based his claim on what he said employees in his grade are currently earning. In his computation of damages in this regard, the plaintiff multiplied the current monthly wages and benefits for employees in his grade by the number of years left to retirement from time of the accident. At the time of the accident he was 37 years old and he said the retirement age was 60 years. He was therefore left with 23 years of working life. The current earnings of employees in his grade were stated as follows:-

Basic monthly wage USD88=

Accommodation allowance USD15=

7% Basic wage being shift allowance USD6=16

Total monthly USD109=16

Multiplying that by 12 months a year and then by 23 years gives a total of USD30,128=16 of which he claimed USD30,000=.

The assessment of an appropriate award for loss of earnings is not as easy as just multiplying figures. There are several contingencies that must be taken into account. In Rusike v Tenda Transport (Pvt) Ltd and Another 1997 (1) ZLR 495 (H), BARTLET J had this to say on the assessment of loss of earnings…,:-

“As a starting point, it is important, wherever possible, to deal with the matter on an arithmetical, actuarial basis as opposed to a 'gut feeling' basis – to use a word often referred to in the authorities. The basic approach is as referred to in CORBETT, BUCHANAN and GAUNTLETT, 3ed p. 60-61, where the learned authors quote at length the observations made by NICHOLAS JA in Southern Ins. Assn v Bailey N.O. 1984 (1) SA 98 (A) at 113F to 114E. I must also, I feel, take account of the observations made in Carsten N.O. v Southern Ins Assn Ltd 1985 (3) SA 1010 (C) where, referring to the headnote it is stated:

'While the court will generally have a regard to arithmetical calculation and to actuarial evidence of probabilities to assist it in its assessment, ultimately it must decide whether the results of such calculations and evidence accord with what is a fair and just award in each particular case.'

Where there is insufficient evidence on the exact figures to use, the court is still enjoined to make an award. In Santam Ins. Co Ltd v Paget (1) 1981 ZLR 73 (A), court held that:-

'A court should make some award in cases where damages are claimed for loss of future earning capacity if it is satisfied that the plaintiff has suffered such a loss, even where there is insufficient information to assess the loss accurately and the court has to pluck a figure out of the air.'”

I raise the above point because there appears to be a gap in the plaintiff's evidence. The evidence adduced did not state the wages that were being paid to workers in the grade as from the time he was discharged to when dollarisation of our economy took place in 2009.

In the assessment of such loss of future earnings there are contingencies to be taken into account.

It is a fact of life that it is not in every case that one reaches retirement age. The probabilities or possibilities of early retirement or retirement due to ill-health, from natural causes, retrenchment, and discharge by employer on other grounds have to be considered.

In casu, the plaintiff was not rendered useless by the disability. What has been rendered of not much use is the right hand. His other limbs were unaffected by the injury. His mental faculties and other abilities were not affected. He should be in a position to learn how to effectively use the one remaining hand and embark on another career. It is unfortunate that from the evidence adduced, he did not seem to have embarked on any other career other than to mourn his lost arm. He should be reminded that damages of the nature sought cannot sustain him. He is not useless or hopeless. He has to mitigate his loss by engaging in meaningful activities.

Due to the fact that he will be using one arm, there will, of course, be limits to the nature and extent of the employment or activities he can engage in. It is that deficiency or limitation that must be compensated by an award for loss of earnings.

Thus, for the first few years, he must be awarded as per the earnings of employees in his grade as he clearly will be adjusting to the use of the left hand. A period of about 3 years should be adequate for this adjustment. After that period, he would need to gain experience in the use of the left hand as part of the adjustment. His level of efficiency will be expected to progressively improve. The next stage will thus be for about 5 years. These years will be assessed at a 50% of the earnings. The balance of the years to be assessed at a rate of one third of the wages for the grade. The calculations will thus be as follows:-

USD109=16 x 12 months x 3 years = USD3,929=76

USD109=16/2 x 12 months x 5 years = USD3,274=80

USD109=16/3 x 3 x 12 months x 11 years = USD4,803=04

Total = USD12,007=60

Taking into account the contingences already alluded to and the fact that he has been compensated in some way and he will continue receiving some money from the National Social Security Authority (NSSA), albeit the amount was not clear, a provision of 5% for contigencies should meet the justice of the case.

An award of USD11,407= will thus be just and fair in the circumstances for loss of future earnings….,.

1….,.

2….,.

3. USD11,407= being damages for loss of future earnings.

HH99-15 : COSMAS NYAMBARA vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL and DETECTIVE CONSTABLE MUUYA and DETECTIVE SEARGENT MUSEKIWA
Ruled By: DUBE J

CLAIM FOR SPECIAL DAMAGES Where a court is being called upon to assess the quantum of monetary damage sustained, sufficient evidence to support the claims should be placed before it. In Hershman v Shapiro Co 1926 TPD 36…, the court remarked thus; “…, monetary damage having been suffered, it is necessary for the court to assess the amount and ...

CLAIM FOR SPECIAL DAMAGES

Where a court is being called upon to assess the quantum of monetary damage sustained, sufficient evidence to support the claims should be placed before it. In Hershman v Shapiro & Co 1926 TPD 36…, the court remarked thus;

“…, monetary damage having been suffered, it is necessary for the court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the court is very little more than an estimate; but even so if it is certain that pecuniary damage has been suffered, the court is bound to award damages.....”

The plaintiff claims that he lost his job after the incarceration. He claims for loss of income in the sum of $5,400=.

It is unclear how this figure was arrived at. The plaintiff alleges, in his closing submissions, that he was employed as a sales representative at Tynserve earning $450= a month. No evidence was led to prove that he worked at Tynserve. His earnings were not proved as no payslips were produced. Instead, he testified that he was a farmer in rural Rusape and that if the police had wanted to interview him in connection with this offence, they would have found him there if they had looked for him there. He claims compensation for loss of revenue from farming activities. The exact nature of the income-generating activities he was involved in at the farm are not known. No evidence of how much he earned and the justification for the amount claimed is not known. The claim of $16,000= has no support on the evidence. It is not good enough to claim that you are a farmer then pluck figures to support a claim for loss of revenues from the air and hope that the court will find in your favour.

I am not satisfied that he has proved that part of the claim….,.

The police testified that after the arrest, the police searched the plaintiff and found a Nokia 5110 cell phone on him and a Taurus revolver. The plaintiff did not suggest, in evidence, that he lost a cellphone line. His evidence was simply that he lost $168= and a cell phone. The police deny that they recovered that type of cell phone from the plaintiff or any money. I believe the third and fourth defendants when they testified that they recovered a Nokia and not a Trium Galaxy phone. I see no reason why the defendants would say that they recovered a Nokia when they recovered a Trium Galaxy cell phone. No motive for lying that they recovered a Nokia was suggested. No value was placed on that cell phone and hence its value is not known. The defendants did not rebut the plaintiff's assertion that he had money on his person which the police recovered during the search. The plaintiff is entitled to the $168= that he lost during the arrest.

The plaintiff also claims the cost of a cell phone line. It is expected that the cellphone would be having a line. However, the plaintiff has not placed a value of the line. That claim fails….,.

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....,.

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

(i)...,.

(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....,.

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.

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.

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

In this application for default judgment, the plaintiff seeks an order to the effect that -

“1. The respondents, jointly and severally, pay the applicant the sum of US$78,900.

2. The respondents, jointly and severally, pay the applicant the sum of US$1,537,833=33 being the United States Dollar equivalent of ZW$46,135,000,000.

3. Interest at the prescribed rate (from the 25th January 2013) being the date applicant demanded return of exhibits.

4. Costs of suit on the legal practitioner and client scale.”

The claim by the plaintiff arises from his prosecution before the Regional Court on a charge of theft. He was acquitted on 18 January 2013. He gave notice, in terms of the State Liabilities Act [Chapter 8:14], on 18 March 2013.

Following the acquittal, it is contended that police unlawfully, and unprocedurally released US$78,900 and ZW$46,135,000,000 which had been seized from the applicant to one Andre Nsaka Nsaka.

It is evident that the cash in question, together with some motor vehicles, were not exhibits before the Regional Court.

It is common cause that the plaintiff was arrested on 16 February 2008 on allegations of theft of US$3,000,000 from Andre Nsaka Nsaka. The following items were seized from the plaintiff -

1. US$78,900.

2. ZW$46,135,000,000.

3. Isuzu double cab LX300 vehicle, registration number ABD 4926.

4. Toyota Vista vehicle, registration number ABC 0347.

The two motor vehicles were subsequently released. Trial commenced in November 2008 and was finalised on 25 April 2012.

It is also common cause that although the defendants filed a special plea to the claim they were subsequently barred for not pleading over to the merits.

It is surprising that those who legally represent the State, and those personnel presiding over State institutions, are lax when it comes to litigation. A simple act of filing a defence to a claim that has serious financial implications to the fiscus went begging by failure to adhere to court rules.

The money being claimed was booked under entry 09/08 (Exhibit Book 34) with CID Suspects. As stated previously, it was never booked with the trial court.

When demand was made for its release, the defendants claimed prescription.

The plaintiff sought confirmation, from the Reserve Bank of Zimbabwe, to the effect, that, as at 11 February 2008, the rate of exchange between the US$ and the ZW$ was US$1 to ZW$30,000. The ZW$46,135,000,000 amounts to US$1,537,833=33.

Although the plaintiff's counsel, in his heads of argument, submits this is vindicatory action, this is essentially a claim for damages.

This is because, in his supporting affidavit, the plaintiff claims that the money seized from him was wrongfully released to Andre Nsaka Nsaka - the complainant in the criminal matter. Essentially, the plaintiff is seeking to be placed in the same position he would have been had the money not been released.

He cannot and is not seeking to recover the exact money seized from him because that money is no longer available. Hence the computation of the US$ equivalent of the ZW$46,135,000,000.

The claim for US$78,900 poses no problem. That is the loss the plaintiff suffered when the money was seized from him.

It is the claim for the US$1,537,833=33 that I find a problem with.

In the first place, it does not follow that when an article is seized by police, it is inevitably going to be used as an exhibit at the intended trial. Even the legality of the seizure, just like an arrest, may be challenged. Therefore, the plaintiff's claim of the seized money was not dependent on the outcome of a criminal prosecution.

Having made those observations, this does not excuse the police from conducting themselves in an unacceptable manner. Section 59(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that -

“Subject to subsection (2), if in connection with any article referred to in paragraph (c) of section fifty eight —

(a) No criminal proceedings are instituted; or

(b) It appears that such article is not required at the trial for purposes of evidence or for
purposes of an order of court; or

(c) Criminal proceedings are instituted and the accused admits his guilt in accordance with section three hundred and fifty-six; the article shall —

(i) If the person from whom it was seized may lawfully possess the article, be returned to that person; or

(ii) If the person from whom it was seized may not lawfully possess the article, be delivered to the person who may lawfully possess it; or

(iii) If no person may lawfully possess the article, or if the police officer concerned does not know of any person who may lawfully possess the article, be forfeited to the State.”

There is nothing to show how it was determined who may lawfully possess the seized cash.

It looks like an arbitrary decision to release the money to Andre Nsaka Nsaka was made. It is not clear if this was motivated by the fact that the plaintiff acknowledged owing Andre Nsaka Nsaka US$145,000.

During the criminal proceedings, there was an indication that the police officer who released the money had criminal charges preferred against him. It was not indicated what the outcome of that process was.

It is also not clear why the plaintiff did not join Andre Nsaka Nsaka in the present suit.

It is well established that delictual damages are calculated as at the date of the delict. In this respect see Parish v King 1992 (1) ZLR 216 (S).

The plaintiff justifies his second claim on the conversion of the economy to multi-currency due to the diminution in value of the local currency.

I have already pointed out that there was no legal impediment to the plaintiff challenging the seizure of his money at the earliest opportunity. It seems the plaintiff chose to await the outcome of the criminal proceedings in order to demand the release of the money.

What if he had been convicted?

Commenting on currency nominalism, GROSSKOPF JA, in S.A. Eagle Insurance Co. Ltd. v Hartley 1990 (4) SA 833, had this to say…, -

“This result seems to me to be in conflict with the principle of nominalism of currency which underlies all aspects of South African law - including the law of obligations. Its essence, in the field of obligations, is that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of currency. This places the risk of a depreciation of the currency on the creditor and saddles the debtor with the risk of appreciation. See FARLON and HARTHAWAY Contract: Cases Material and Commentary, 3rd ed, at 719, note 2; HJ DELPORT, Inflation and South African Law (1982) 4 Modern Business Law 115 and A SPANDAU, Inflation and the Law 1975 SALJ 31.”

Nominalism is the norm in the common law of Western States with similar systems to our own. Thus, in Humphrey (1962) 272 US 517…, the United States Supreme Court said:

“An obligation in terms of the currency of a country takes the risk of currency fluctuations and whether creditor or debtor profits by the change the law takes no account of it. Obviously, in fact, a dollar or a mark may have different values at different times, but, to the law that established it is always the same. If the debt had been due here and the value of dollars had dropped before suit was brought, the plaintiff could recover no more dollars on that account.”

A person claiming damages, in whatever form, must prove that they suffered loss in the amount claimed: see Kwindima v Mvundura 2009 (1) ZLR 168 (H).

In so awarding such damages, the court exercises its discretion. In deserving cases, the courts have made awards in foreign currency notwithstanding the cause of action having arisen during the era of the local currency.

I am therefore satisfied that the plaintiff's claim cannot be granted in its entirety. In the result, it is ordered as follows -

(a) That the defendants, jointly and severally, the one paying the other to be absolved, pay the plaintiff the sum of US$78,900.

(b) That the defendants jointly and severally, the one paying the other to be absolved, pay interest at the prescribed rate from the 25th of January 2013.

(c) That the defendants, jointly and severally, the one paying the other to be absolved, pay the costs of suit.

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Delictual Damages re: Economic or Monetary Loss iro Commercial, Pecuniary, Patrimonial, Loss of Income or Revenue

SC09-12 : THE COLD CHAIN (PRIVATE) LIMITED vs ROBSON MAKONI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD
Ruled By: NDOU J

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI
Ruled By: MAVANGIRA J

HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI
Ruled By: MAVANGIRA J

HH196-10 : MONDAY BOPOTO NYANDORO vs MINISTER OF HOME AFFAIRS and COMMISSIONER OF POLICE
Ruled By: PATEL J

View Appeal
HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED
Ruled By: KUDYA J

HH228-10 : CAROLINE MABAIRE vs SHEPHERD JAILOSI and THE MINISTRY OF TRANSPORT AND COMMUNICATIONS
Ruled By: KUDYA J

View Appeal
HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS
Ruled By: MATHONSI J

HH55-14 : PRINCE CHINEMBIRI and PARADZI MUPANDENYAMA and ALEXIO TEMBO and KUDAKWASHE PFUNDE and CLEMENCE SHAMU and ORCHARD KANJADO vs CHANCE NCUBE and DANIUS RUNGANO and ZETDC
Ruled By: MATANDA-MOYO J

HH20-10 : CHRISTOPHER GWIRIRI vs STARAFRICA CORPORATION (PRIVATE) LIMITED t/a HIGHFIELD BAG (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

HH99-15 : COSMAS NYAMBARA vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL and DETECTIVE CONSTABLE MUUYA and DETECTIVE SEARGENT MUSEKIWA
Ruled By: DUBE J

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

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

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

Categories

Law Portal Zimbabwe

Delictual Damages re: Economic or Monetary Loss iro Commercial, Pecuniary, Patrimonial, Loss of Income or Revenue

SC09-12 : THE COLD CHAIN (PRIVATE) LIMITED vs ROBSON MAKONI Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD Ruled By: NDOU J

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES Ruled By: BHUNU J

HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI Ruled By: MAVANGIRA J

HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI Ruled By: MAVANGIRA J

HH196-10 : MONDAY BOPOTO NYANDORO vs MINISTER OF HOME AFFAIRS and COMMISSIONER OF POLICE Ruled By: PATEL J

View Appeal HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED Ruled By: KUDYA J

HH228-10 : CAROLINE MABAIRE vs SHEPHERD JAILOSI and THE MINISTRY OF TRANSPORT AND COMMUNICATIONS Ruled By: KUDYA J

View Appeal HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED Ruled By: KUDYA J

HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS Ruled By: MATHONSI J

HH55-14 : PRINCE CHINEMBIRI and PARADZI MUPANDENYAMA and ALEXIO TEMBO and KUDAKWASHE PFUNDE and CLEMENCE SHAMU and ORCHARD KANJADO vs CHANCE NCUBE and DANIUS RUNGANO and ZETDC Ruled By: MATANDA-MOYO J

HH20-10 : CHRISTOPHER GWIRIRI vs STARAFRICA CORPORATION (PRIVATE) LIMITED t/a HIGHFIELD BAG (PRIVATE) LIMITED Ruled By: CHITAKUNYE J

HH99-15 : COSMAS NYAMBARA vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL and DETECTIVE CONSTABLE MUUYA and DETECTIVE SEARGENT MUSEKIWA Ruled By: DUBE J

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

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

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI Ruled By: MUSAKWA J

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Law Portal
Zimbabwe

SC09-12 : THE COLD CHAIN (PRIVATE) LIMITED vs ROBSON MAKONI
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HB72-09 : RADAR INVESTMENTS (PVT) LTD t/a RADAR METAL INDUSTRIES vs K.A. AGENCIES AND DISTRIBUTORS (PVT) LTD
Ruled By: NDOU J

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI
Ruled By: MAVANGIRA J

HH183-10 : LUKE CHIGWIDA and MAVIS CHIPFUPA vs WITBEST ENTERPRISES (PRIVATE) LIMITED and SYDNEY CHADA and MAINLINE TANKERS and STANLEY CHIHURI
Ruled By: MAVANGIRA J

HH196-10 : MONDAY BOPOTO NYANDORO vs MINISTER OF HOME AFFAIRS and COMMISSIONER OF POLICE
Ruled By: PATEL J

View Appeal
HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED
Ruled By: KUDYA J

HH228-10 : CAROLINE MABAIRE vs SHEPHERD JAILOSI and THE MINISTRY OF TRANSPORT AND COMMUNICATIONS
Ruled By: KUDYA J

View Appeal
HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS
Ruled By: MATHONSI J

HH55-14 : PRINCE CHINEMBIRI and PARADZI MUPANDENYAMA and ALEXIO TEMBO and KUDAKWASHE PFUNDE and CLEMENCE SHAMU and ORCHARD KANJADO vs CHANCE NCUBE and DANIUS RUNGANO and ZETDC
Ruled By: MATANDA-MOYO J

HH20-10 : CHRISTOPHER GWIRIRI vs STARAFRICA CORPORATION (PRIVATE) LIMITED t/a HIGHFIELD BAG (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

HH99-15 : COSMAS NYAMBARA vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL and DETECTIVE CONSTABLE MUUYA and DETECTIVE SEARGENT MUSEKIWA
Ruled By: DUBE J

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

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

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J