MATANDA-MOYO
J:
The
plaintiff is a resettled farmer carrying out farming activities on
Subdivision 1 of Eastworlds in Mazoe District. Such farm was offered
to him on 21 February 2002 under the Government Resettlement
Programme.
On
the farm is a 12 hectare lemon plantation under irrigation. There is
a ZESA power line which passes through the lemon plantation. On 25
September 2011 fire broke out on the plaintiff's farm destroying
the lemon plantation. The plaintiff attributed such fire due to the
negligence of the defendant prompting him to file this claim.
The
plaintiff's claim is in the sum of $238,253-00 for damages suffered
as a result of the defendant's negligence.
It
is the plaintiff's claim that the defendant created a dangerous
situation on his farm and the defendant had a duty of care towards
the plaintiff and his property and was negligent in failing to
protect the plaintiff's property from such harm.
The
defendant denied liability for the destruction of the plaintiff's
plantation and irrigation equipment. The defendant denied the
conductor snapped due to any negligence by the defendant.
Alternatively the defendant pleaded contributory negligence by the
plaintiff. The defendant also put into issue the quantum of damages
suffered by the plaintiff.
The
plaintiff called four witnesses to testify on his behalf. Of the four
only his caretaker was present on the day in question. His caretaker
Collen Chadzika testified that he was relaxing at his home on the
farm when he heard sounds of snapping conductor coming from the power
line which cut across the lemon plantation. He proceeded to the scene
and observed that the lemon plantation was on fire. He observed some
power cables which had fallen on the ground and were bursting and
twisting inside the plantation igniting the mulching grass therein.
When he got to the scene an area the size of a football pitch had
already been destroyed by fire. The fire continued to spread across
the plantation. Some people from the farm compound followed him and
they together with Colen tried to extinguish the fire to no avail. He
phoned the plaintiff and advised him of the situation. He was advised
to make a report at the police station. He proceeded to the police
station and made the report.
Under
cross-examination he stuck to his story that it was the ZESA cables
that ignited the fire. He was however not very helpful on shedding
light on what could have caused the snapping of the defendant's
conductors. He however confirmed that a month earlier a tree had
fallen onto the defendant's powerline causing the breaking of the
defendant's conductor. The defendant's technician attended to the
fault and joined the conductor.
The
plaintiff testified that on the day in question he received a
telephone call from his caretaker that the defendant's conductor
had snapped and caused a fire that was burning his lemon plantation.
He advised Colen to make a report to the police and the defendant.
The plaintiff contacted the defendant's Mvurwi Office but was
advised a team had already been dispatched to the scene. On 26
September the plaintiff proceeded to the farm where he observed that
his 12 hectare lemon plantation had been completely destroyed by the
fire. The irrigation equipment which serviced the plantation was also
destroyed. He observed that the fire started from within the
plantation. It was his testimony that the plantation was surrounded
by a 9 metre fireguard which made it impossible for the fire to have
crossed into the plantation from elsewhere.
The
plaintiff engaged the Environmental Management Authority which
referred him to the Forestry Commission. An official from the
Forestry Commission attended on the farm and compiled a report on the
extent of the damages. He also brought in Mighty Flow Irrigation
Company which produced a report on the cost of replacing the
irrigation equipment.
The
plaintiff testified that an official of the defendant who was the
manager at Mvurwi admitted liability and requested him to file a
claim for compensation. Such claim was filed and nothing
materialised.
It
was the plaintiff's evidence that the lemon plantation was on 12
hectares with a total number of 9,360 trees aged between 16 and 17
years. He testified that all trees were destroyed and the only way
forward was to remove the old trees and plant new ones. He put the
cost of clearing land at $4,680-00 and the total cost of planting new
trees at $3,000-00, that is labour only. The trees cost $5-00 each
making a total sum of $46,650-00. The price was as provided for in
the report by the Forestry Commission. He said that the trees would
take up to five years to harvesting and he wanted to be compensated
for loss of income for those five years. He put his seasonal yield at
500 tonnes at a selling price of $6-00 per kg, making a total sum of
$30,000-00 per season. As proof of yield he submitted a packing
summary from Citifresh which showed that in 2003 he supplied
Citifresh with 379,069.1 kgs of lemons. He also produced a receipt
from Mazoe Citrus Estate which showed that on 3 July 2009 he supplied
Mazoe Citrus with 15,560kgs of lemons.
Under
cross-examination he agreed he did not have proof of production for
2009, 2010 and 2011. His explanation was that he had relocated and
could not find his papers. He also admitted he was not present when
the fire started and only visited the scene the following day. He did
not get three quotations for the irrigation equipment and for the
replacement of trees. He based his claims on single quotations.
Mrs
Chebanga testified that she is employed by the Forest Commission as a
District Forest Extension Officer. She knows the plaintiff as a
farmer in Mazoe District. She testified that on 11 October 2011 she
received a complaint from the plaintiff that his plantation had been
burnt by fire. She visited the farm to assess the damage. The
plantation was a lemon plantation covering 12 hectares. She
established the source of fire as having been caused by the
defendant's cables. On being asked how she had come to such a
conclusion she testified that she had been informed by the plaintiff.
She
established that the whole plantation had been burnt. She counted the
number of trees and found 9,360. She prepared a report which was
admitted into evidence as Exh 6.
In
the report she put the number of trees destroyed at 9,360 with a
replacement value of $46,800-00 at $5-00 each. The plantation was
producing 500 tonnes per season sold at 6c per kg a total value of
$30,000-00.
She
said she got the price of $5-00 from the Forest Commission nursery.
It was her testimony that Forest Commission Nursery is the cheapest
on the market as it is non-profit making organisation whose aim is to
encourage farmers to grow trees. She also said in terms of section
78(b) of the Forestry Act [Chapter
19:05]
she is regarded as a fire expert.
However,
this witness did not fare well under cross-examination. She was rude
and evasive. If she was not biased her testimony would have greatly
assisted the court. I was convinced her report was a duplication of
the plaintiff's story as narrated to her. She even put the yield at
500 tonnes per hectare without any formula of arriving at the figure.
I do not therefore intend to place much reliance on her testimony.
She failed to answer reasonably to questions posed to her under
cross-examination for example she was told that the plaintiff had
admitted that he was not present on the day in question and she
refused to accept that. Her unreasonableness led me to discard her
evidence as invaluable.
The
last witness for the plaintiff was David Bvunzawabaya from Mighty
Flow Irrigation (Pvt) Ltd. He testified that he visited the farm to
assess the irrigation equipment damaged by the fire. He testified
that the cost of replacing the irrigation equipment was $33,773-00.
Under cross-examination he admitted that he did not prepare the
quotation submitted in court. He produced his own report that he
prepared after visiting the farm which said he observed that some
trees were burnt whilst others were not burnt. He failed to defend
the quotation of $33,773-00.
The
plaintiff closed its case.
The
defendant called two witnesses to testify on its behalf. Ozwell
Kubvoruno testified that he is employed by the defendant as an
artisan and is based at Mvurwi. He attended at the plaintiff's farm
on the day that fire broke out. They had received a report that their
conductor had broken causing a fire which burnt the plaintiff's
fields. He had no reason to disbelieve the report.
On
arrival there was indeed a conductor lying across the road next to
the plaintiff's lemon plantation. He also observed that the citrus
trees were burning. He also observed burnt piles of cut Cyprus trees.
This witness testified that he did not investigate the cause of the
fire but it was his testimony that a conductor could break due to
various causes amongst them veld fires, being hit by lightining and
trees falling onto the lines. It was also his testimony that should a
person require to cut trees which may interfere with the defendant's
power lines, it was the duty of such person to liase with the
defendant before hand. The defendant would on that day switch off the
line and drop conductors to ensure safety of the public and their
power lines. According to his knowledge the plaintiff had never
requested for such authority. He had heard a month before from his
boss Mrs Masaira that the plaintiff had cut a tree which had fallen
onto the defendant's 11kv line causing one of the conductors to
break.
Mrs
Masaira attended to that fault and fixed the conductor.
A
tree which was being cut by the plaintiff's workers fell on the
powerline causing the conductor to break. It was the same conductor
which snapped and broke on 25 September 2011. However, Mr Kubvoruno
observed that the fixed part of the conductor was intact. That
evidence destroyed the weak link issue. The question of weak link
would have sufficed had the conductor snapped from the mended part.
Mrs
Masaira testified that the cause of the fire was not established.
Veld fires could cause the snapping of conductors and so do
lightining or contact with the ground. The snapping of the conductor
could have been caused by any of the above factors. She denied that
she had accepted liability on behalf of the defendant, testifying
instead that the plaintiff approached her and indicated his intention
to lodge a claim for compensation to the defendant for his destroyed
citrus plantation. She advised the plaintiff to submit his claim for
onward transmission to the Bindura office for consideration. The
plaintiff did so.
Under
cross-examination she said she accompanied her boss Mr Mafoko to the
plaintiff's farm after the plaintiff lodged the claim. She did not
know what transpired thereafter. She agreed that when she mended the
conductor the first time, a weak point was created but the repairs
she carried out are acceptable in the field.
From
the analysis of the evidence presented there is no doubt that the
fire was caused by a broken conductor. What is not clear is what
caused the conductor to break.
All
the witnesses got to the scene when the conductor was already on the
ground and when the plantation was on fire. There were no eye
witnesses who observed where and how the fire started. It is also
common cause that the lemon plantation was burnt and that the lemon
plantation was under 12 hectares. Some irrigation equipment was also
burnt in the process.
It
is also not in dispute that a month earlier a tree had fallen on to
the defendant's powerline. The plaintiff opined that such tree was
as a result of being blown by wind whereas the defendant insisted the
plaintiff's employees were cutting trees and one of the trees fell
onto the powerline causing the conductor to snap.
For
purposes of this case it is not crucial to determine what caused the
tree to fall. The relevance of this evidence is on whether the
defendant negligently repaired the conductor on the day in question
and whether ultimately such repairs contributed to the caused the
snapping of the conductor on 25 September 2011.
It
was plaintiff's evidence that the defendant, by joining the
conductor, created a weak link on the conductor posing future dangers
to his property. The defendant called in two of its technicians who
testified that scientifically the joining of the conductors was an
accepted method of repairs to a broken conductor. It was also the
testimony of one of the defendant's witnesses that on inspecting
the conductor on 25 September 2011, the joined part was intact. Such
finding destroyed the probability that the joining of the conductor
created a weak link. There was therefore no evidence that the
conductor snapped due to the method of repair effected by the
defendant a month earlier. The plaintiff could not prove that without
calling expert evidence.
In
the case of Metallon
Corp Ltd v
Stanmarker
Mining (Pvt) Ltd 2007
(1) ZLR 298 (S) the court laid down what the plaintiff must establish
in an Aquilian action for patrimonial loss, that is:
“(i)
That the defendant committed a wrongful act;
(ii)
That the plaintiff suffered patrimonial loss, viz, actual loss
capable of pecuniary assessment;
(iii)
The defendant's act caused the loss suffered by the plaintiff and
that the harm occasioned was not too remote from the act complained
of;
(iv)
The responsibility for the plaintiff's loss is imputable to the
fault of the defendant, either in the form of dolus
(intention) or culpa negligence).”
The
plaintiff has not shown any wrongful act committed by the defendant.
The mere fact that the defendant's powerline pass through the
plaintiff's plantation is not per se a wrongful act. From the
evidence there is no negligence through an act.
I
turn to deal with the issue of negligence by omission.
The
plaintiff must give evidence on what it is that the defendant was
supposed to do and failed to do resulting in the loss suffered by the
plaintiff.
I
agree with the plaintiff's submission that in general terms there
is no dialectical liability for an omission unless the law recognises
from the circumstances, that there was a legal duty to take positive
action to prevent harm from occurring. See Minister
of Police v
Ewels
1975 (3) SA 759 A. The questions to be answered are;
(1)
Whether harm was reasonably foreseeable; and
(2)
Whether a reasonable person would have taken action to prevent such
harm from occurring.
The
plaintiff's argument is that by simply having its powerline cutting
across the plaintiff's lemon citrus and farm in general, the
defendant created a source of danger to the plaintiff's property
and the defendant assumed a duty to prevent any such harm from
occurring.
What
this court fails to understand is how the plaintiff could maintain a
lemon plantation directly under electrical powerlines.
The
general policy world over is that trees are not to be allowed to grow
under powerlines as that poses dangers when such trees come into
contact with the fully charged powerlines. However I do not intend to
waste time on this subject as there is no evidence that a tree came
into contact with the defendant's powerline causing the conductor
to snap and thus causing a fire. If the facts were such, I would not
have hesitated to find the defendant negligent. So the argument by
the plaintiff does not take his matter any further.
In
my opinion it would be going too far to say, so much care was
required between the plaintiff and the defendant where as is in this
case, the powerline is generally not dangerous, but may become
dangerous by a latent defect entirely unknown to the defendant, even
though it may be discoverable by the exercise of ordinary care, the
defendant should be answerable to the latter for a subsequent damage
arising from the unknown latent defect.
This
is a matter where courts should try and avoid overkill.
If
this court were to find that the repairs made on the conductor, as
submitted by the plaintiff caused a weak link which created a
dangerous situation and resultantly caused damages to the plaintiff,
the court might create a scenario where the defendant would simply
stop effecting such repairs and thus causing severe suffering to the
public at large. It is common cause that should it be expected that
each time a conductor snaps, the defendant should replace it with a
new one, an untenable situation would result. It is not in the public
interest especially where no expert evidence was led to show that the
sort of repairs done earlier on indeed created a hazard which caused
fire on the day in question, to find the defendant liable. The
plaintiff failed to prove the defendant's liability in the absence
of such expert evidence.
It
is trite that to hold the defendant liable in these circumstances,
where there is no proof of negligence, is tantamount to making the
defendant the plaintiff's insurer.
The
standard of care should not be pitched too high. To allow liability
in the present case to me would be tantamount to pitching the
standard of care too high.
Ordinarily
costs follow the cause. But due to the nature of the present case, I
am not going to order the plaintiff to pay costs.
Accordingly
the claim fails in its entirety and is dismissed with no order as to
costs.
Mavhunga
& Associates,
plaintiff's legal practitioners
Muza
& Nyapadi,
defendant's legal practitioners
