NDEWERE J: The plaintiff is leasing Dagbreek farm
from the State since 6 February, 2004.
The first defendant is Makoni Rural District Council, a local authority
in the area that Dagbreek farm is situated.
The second defendant is the International Organisation for Migration, a
non-governmental organisation.
On 16 April, 2012, the plaintiff
issued summons for the payment of:-
(a) US$100 000-00 being damages for loss of
property and vandalism.
(b) US$150
000-00 being damages for unlawful interference with farming activities at Dagbreek
Farm and loss of crops.
(c) Payment
of interest on the aforesaid sum at the prescribed rate from date of demand to
date of full and final payment.
(d) Costs
of suit at attorney and client scale.
On 28 May 2012, the first
defendant filed its plea. It denied
authorising use of the farm, but said it authorised use of a 20 metre servitude
which passes through the plaintiff's farm.
It also said the Civil Protection Act allows it to use any land to save
lives of the public when they are in danger.
It denied inviting people to steal or destroy. It said the plaintiff acquiesced by her
silence and is therefore estopped from complaining over the issue.
The second defendant did
not defend the action.
The background of the
matter is that between 2006 and 2009, the first defendant authorised the second
defendant to use Dagbreek Farm, Nyazura, as a Distribution Centre for food to
needy villagers in the area. The
plaintiff said she was neither consulted nor informed about the decision by the
first defendant; she just saw the second defendant coming to her farm to
distribute food and villagers from surrounding villages converged on her farm
to receive the food. Her evidence was
that throughout this period, she moved from office to office to get help on
this issue because her property was being vandalised by people who were coming
to the farm during the distribution, with some remaining on the farm thereafter.
Her evidence was that she sought intervention from the councillor for her area,
Minister Muchinguri, former Minister Mutasa and the Ministry of Lands, but
without success. She said she approached
the second defendant in Harare, in Mutare and even sent a letter to the second
defendant's headquarters in Geneva, but no steps were taken to alleviate the
challenges she was facing on the property because of the people coming to the
farm as a result of the food distribution.
She said eventually, after narrating the degree of her losses, the
Ministry of Lands advised her to go to court.
Upon receiving this advice from the Ministry of Lands, she wrote a
letter to the second defendant, as the Distributor at her farm, holding it
accountable for the destruction of her property on the farm. She received a reply not from the second
defendant, but from the first defendant, on 14 December, 2011. That letter absolved the second defendant
from any wrongdoing and the letter confirmed that Dagbreek Farm was a
Distribution Centre and that the first defendant had authorised the second
defendant to use Dagbreek as a Distribution Centre.
The plaintiff said that
was the first time that she got to know that the first defendant was involved. Although she had engaged the Councillor of
her area, that Councillor never told her that in fact the designation of her
farm as a Distribution Centre was a Council decision.
Thereafter, the plaintiff
issued summons against both the first and the second defendants for the amounts
claimed.
She gave evidence on the
damage she sustained on the property which included thefts of cattle, and
interference with ZESA equipment and failed crops caused by a failure to
irrigate owing to the vandalism of ZESA equipment. She said at one point she lost 35 head of
cattle on one day and they were never recovered. Her evidence of the missing cattle was
corroborated by Lovemore Ngwenya, a neighbour, who was questioned by the police
on the issue.
She said the first
defendant should not have authorised the use of her farm because there were
other public areas suitable for the purpose like Folkington Primary School
which has been used as a polling station previously. Her evidence that Folkington Primary School
could have been used instead of her farm was corroborated by Lovemore Ngwenya
who was the School Development Association Chairperson since 2007. Her evidence was that by using her farm, the
first defendant opened it up to thefts and vandalism which continue up to the
present day because the very act of designating the farm as a Distribution
Centre made people believe that the farm had been repossessed by the State and
was now “no man's land” as it were and people were doing as they pleased on the
farm. She produced a bundle of documents
full of invoices and receipts explaining the actual damage she suffered as a result of the vandalism and said what she
claimed in the summons was actually less than the loss.
Two witnesses were called
to corroborate her evidence on the distribution point in the farm, the missing
cattle and failed crops and the plaintiff's case was closed.
The first defendant
applied for absolution from the instance.
The court then invited both parties to make written submissions on the
application. The court received
submissions from both parties. I have
had occasion to consider the pleadings, the evidence led on behalf of the
plaintiff and the submissions from the parties.
Both the plaintiff and the
first defendant referred to the case of Supreme
Service Station 1969 (Pvt) Ltd vs Fox
and Goodridge (Pvt) Ltd 1971 (1) RLR
5 (A) where BEADLE CJ stated as follows:-
“The test
therefore, boils down to this; is there sufficient evidence on which a court
might make a reasonable mistake and give judgment for the plaintiff?”
BEADLE
CJ went further and said:-
“- rules of
procedure are made to ensure that justice is done between the parties, and, so
far as possible courts should not allow rules of procedure to be used to cause
an injustice……………..”
In
this instance we have the plaintiff saying the first defendant authorised use
of her farm and did not do anything to avert the plunder and destruction of her
property. This assertion is corroborated
by the first defendant's own letter to the plaintiff dated 14 December
2011. In that letter, the first
defendant confirms authorising the use of Dagbreek Farm. It calls it “Dagbreek Distribution Point” and
confirms that Dagbreek was a Distribution Centre. There is no mention of any servitude at
all. The letter confirms authorising use
of Dagbreek farm then denies any vandalism.
The
fact that the first defendant in its plea says it authorised use of a servitude
and in its submissions calling for absolution after hearing the plaintiff's
evidence on the issue it maintains that it authorised use of the servitude and
not the whole farm means there is a dispute of fact on which land or part of
land the first defendant authorised. It
is only fair that the first defendant be called upon to give evidence on this
issue, so that the court has all evidence before it makes a final determination. I am fortified in this view by what BEADLE CJ
said in the Supreme Service Station case (supra)
referred to by both parties. On pp 5-6
of the report, the court said;
“If the defence is
peculiarly within the knowledge of a defendant, and the plaintiff has made out
some case to answer, the plaintiff should not lightly be deprived of his remedy
without first hearing what the defendant has to say. A defendant who might be afraid to go into
the box should not be permitted to shelter behind the procedure of absolution
from the instance.”
As
regards the issue of what land or part of land was authorised, the first
defendant is the only one in the know.
It is the one which authorised the use.
At this stage the court does not even know the form of the
authorisation. It is only fair that the
first defendant testifies on that issue for it to be properly ventilated.
A related matter is the
number of times the distribution was done.
The plaintiff's evidence was that she just would see people milling
within her farm; she had no knowledge of the duration of the distribution or
the intervals. Indeed, even in her
summons, she says between 2006 and 2009.
The first defendant has been telling the court that the distribution was
once a month, but up to now, there is insufficient evidence to confirm the once
a month assertion. This is another
factor which is “peculiarly within the knowledge of the defendant.” The first defendant was the authority giving
permission and the second defendant was the distributor. It is best that the court determines these
questions of fact after hearing all evidence from both sides.
The
first defendant has cited the Civil Protection Act, [Cap 10:06] in para 2 of its plea as the basis for using the
plaintiff's farm. In the written
submissions on the absolution from the instance application, the first
defendant went further and cited s 23 of that Act.
I
have looked at s 23 of the Civil Protection Act, [Cap 10:06]. It has onerous
provisions for the State which begin with a Declaration of Disaster by the
President in terms of s 27 for three months which may be extended;
communication of the declaration to Parliament in terms of s 28 and service of
written notice to the person possessing the land. Since the first defendant is
relying on the Civil Protection Act, [Cap
10:06], the steps which were taken to comply with ss 23, 27 and 28 are facts which are “peculiarly within
the knowledge of the first defendant.” So
the first defendant will have to give evidence on these aspects of the case as
well before a final determination can be made.
Section
23(3) of the Civil Protection Act gives the possessor of the land room to raise
objections and if the authority persists in wanting to seize the land, then it
goes to the Administrative Court.
Section 23 (6) says the land seized shall be “promptly returned in the
condition in which it was at the time of such taking of possession or control”
while section 23(7) provides for adequate compensation.
So
the court is eager to hear what the first defendant did in compliance with s 23
above in its evidence because that section provides for service of written
notice upon the possessor of the land yet in the present case, the plaintiff
testified that the first defendant did not even inform the plaintiff throughout
the period it allowed the second defendant to use Dagbreek farm as a
Distribution Centre.
Sections 23(6) and 23 (7)
refer to the land being returned as it was and to compensation. In essence, that is what the plaintiff is
claiming in this case, that her farm be returned to what it was before the
first defendant and the second defendant used it as a food distribution centre.
The spirit behind s 23 is to help the needy while at the same time preserving the
possessors' property rights so from a factual point of view, the court expects
evidence from the first defendant on what it did in fulfilment of the
provisions of s 23 of the Civil Protection Act which it is relying on in its
defence because that evidence is “peculiarly within” the first defendant's
knowledge.
Section
23 (10) says if the property is owned by the State then the authority seizing
the land must get the consent of the Minister responsible for land. The evidence before me so far is that it is
the Ministry of Lands which eventually advised the plaintiff to bring the
matter to court after she had advised them of the degree of the damage to her
property. So once again, the first
defendant will have to give evidence on this issue of obtaining the Minister's
consent since it is the one relying on s 23 of the Civil Protection Act [Cap 10:06].
So
there are a lot of factual issues which cannot be given a final determination
without hearing the first defendant's evidence because the outstanding evidence
is peculiarly within the first defendant's knowledge.
Given the facts outlined
above of the first defendant turning Dagbreek Farm into a Distribution Centre
without the plaintiff's prior knowledge or consent, I am of the view that the
first defendant owed the plaintiff a duty of care. It was reasonably foreseeable that huge
numbers of hungry and needy villagers of up to 300 or 400 getting into the farm
using scotch carts and hired cars to carry donated goods would compromise the
security of the plaintiff's property on the farm; leading to vandalism and
theft of the plaintiff's property during the food distribution or afterwards. This duty of care is even more when a party
is a public entity like the first defendant and when regard is had to the
provisions of s 23 of the Civil Protection Act [Cap 10:06].
As
pointed out in Goode v SA Mishal Fire and General Insurance Co.
Ltd 1979 (4) SA 301 at 305.
“Negligence is
conduct which involves an unreasonable risk of harm to others. It is the failure in given circumstances to
exercise that degree of care which the circumstances on the occasion demand.”
The
first defendant created a situation where it designated Dagbreek Farm as a
distribution centre, without notifying the plaintiff as required by law,
without her consent and without even her knowledge. This situation created an “unreasonable risk
of harm” to the plaintiff through vandalism and theft of her property. The situation the first defendant created behoved
it to act with a high degree of care to ensure the protection of the
plaintiff's property from harm from the hungry villagers getting in and out of
the farm. It had chosen not to involve
the plaintiff in the management of this situation by not even informing her of
its decision, thus assuming responsibility for the goings on at the farm. In Goode
vs SA Mutual Fire and General Insurance Co. (supra) the court said:-
“If the conduct of
a person who owes a duty of care falls, even in the slightest degree, below the
standard of a reasonably prudent man, he is guilty of negligence.”
In
my view, the first defendant assumed a duty of care in designating Dagbreek
without the plaintiff's consent or knowledge, as a distribution centre. So far it appears as if it failed to
adequately protect the farm's infrastructure and property against vandalism
occasioned by the uncontrolled movement of hungry people in and out of the
farm. However, until the first defendant
has testified and told the court the steps it took in the exercise of its duty
of care, after designating Dagbreek a food distribution centre, the court
cannot make a final determination on whether the first defendant took reasonable
steps to discharge its duty of care. So
on this issue again, the first defendant's evidence will be instructive.
On
the quantum of damages, the plaintiff gave her evidence well, supported with
documentary proof where possible. The
evidence revealed more damage than what she claimed in the summons. She
explained the difference in her claim and her evidence as having been caused by
the fact that initially she was too emotionally disturbed by what had happened
at the farm but when she regained her composure, she began to look for all the
documentary evidence of the loss. Her
documentary evidence was largely unchallenged.
So on quantum, the court is satisfied that the plaintiff has made a case
for her losses, sufficient to allow the trial to proceed.
The
application for absolution from the instance is therefore dismissed for the
above reasons.
The
plaintiff applied for costs on a higher scale but no justification was given to
the court on why the punitive higher scale should be used against the first
defendant.
I
will therefore award costs in the ordinary scale to the plaintiff.
Venturas &
Samkange,
Applicant's Legal Practitioners
Warara & Associates, Respondents' Legal
Practitioners
