Civil
Appeal
MUZENDA
J:
All
in the love of a pet! Many linguistic authors have described a pet to
include “favourite, preference, darling, idol, jewel, apple of
one's eye, matinee or in French enfante gâte.”
Having
been frustrated or failed by human friends whether male or female,
humans all over the world from time immemorial had experimented with
the animal world to find a real mate or friend. These animal friends
stretch from domestic to wild animals, felines, bovines, canines,
serpents, birds, fish and others, the list is endless. Some of the
pests are fiery and dangerous to accommodate in a residential
environment, but all has been done in the name of pet love.
These
pets to some of the humans evolved into both great and false friends
and as the saying goes “false friends are like migratory birds,
they fly away in the cold weather.”
But
to appellant in this case he had managed to show a true character of
a friend.
It
may seem superfluous to say anything more since good friends are
among life's greatest blessings and the lack or loss of them the
saddest of deprivations, anything which reminds them of the value of
a good friend does not come amiss.
Appellant
bought a canine pet when it was young and cared for it for a
considerable period which ran into years. During that period a great
alliance developed. As usual friendship is a hard, strong, slow
growing beautiful thing. The soul in which friendship grows is the
social set up in which one lives. Friends are made through the heart
not the eye.
The
appellant was not the only one who won the heart of the dog but his
sons and the whole family became a total symbiosis to the dog, that
is from the photographs which were produced in the court a
quo,
filed of record.
The
photographic images depict a real charming togetherness.
The
Hebrew Scriptures accurately captures that “A faithful friend is a
sure shelter. Whoever finds one has found a rare treasure. A faithful
friend is something beyond price, there is no measuring his worth.”
If
the dog could have been asked during its life time it could have
equally vividly described how glorious its life was in the company of
appellant's family.
Friendship
begins with a long standing invitation. It says to the other you get
on well with; let us tear down the barriers between us, let us pledge
ourselves not to fight one another, but rather to comfort, challenge
and support.
One
has to use a mirror to see one's face. You use a friend to see your
soul. Thus friendship is a union of one mind with another.
Men
become like those they associate with.
Experience
globally shows that pet lovers from the Western World go to the
extent of sharing their beds and relaxing rooms with their pets, and
the majority in the orient dismiss their dogs to the outside when
they retire and in most instances the pet or dog has to find a warm
place for the night and for the merry makers, they “patrol” the
environment exposing themselves to the local authority shenanigans,
who in the spirit of controlling infested dogs end up shooting
residents pest as what happened in this case.
On
15 March 2018 the appellant issued summons against the local
authority and its employees claiming:
“(a)
payment of the sum of $2,800-00 being special damages;
(b)
payment of the sum of $200-00 being general damages;
(c)
interest a
tempore more
from the date of judgment to date of payment; and
(d)
costs of suit.”
According
to the synopsis of appellant's particulars of claim filed in the
Magistrate's Court the first respondent is the local authority,
second respondent is the Town Secretary and third respondent is the
Chief Security Officer.
On
16 July 2017 and at 2125 hours, the respondent's employees
wrongfully and unlawfully shot and killed appellant's dog at
appellant's House No.1187 Mabvazuva Suburb, Rusape.
As
a result of respondent's wrongful and unlawful conduct appellant
suffered damages, detailed as follows:
(a)
special damages for money spent on the dog: purchase money as a
puppy, its upkeep, castration, dipping chemicals and treatments the
dog received for the continuous 9 years appellant had the dog all
totalling to $2,500-00; the dog's market value of $300-00. Total
$2,800-00.
(b)
General damages for trauma, pain and suffering which includes:
sentimental value, loss of companionship, love and affection:
$1,000-00.
Emotional
distress that is to say seeing the dog die, the time it is going to
heal the wound left in appellant's heart and mind caused by the
sight of a loved pet dying after being heartlessly butchered which
dog appellant had not anticipated would die in that manner as he was
in the process of getting ready to feed it with a meal it died having
never tasted: $1 000-00.
In
the respondents plea filed on their behalf they contended that they
were working with Zimbabwe Republic Police and other interested
persons.
On
the day in question, Sunday was a working day, stray and feral dogs
spread diseases and attack people even on Sundays. The dogs in
general, including appellant's, were shot after all necessary legal
steps have been taken and were shot by a police detail.
Hence
respondents conduct was lawful and guarded by the police.
Appellant
did not suffer any damages at all or even if appellant suffered any
damages, he did not suffer damages shown on the pleadings.
The
respondents denied that any of the dogs shot belonged to the
appellant. The appellant was put to strict proof.
The
matter proceeded to trial and after the court a
quo
heard all the parties and proceeded to dismiss appellant's claim.
Appellant
noted an appeal against the learned magistrate's judgment on 9
January 2019.
The
grounds of appeal cover 10 paragraphs, they are not specific, and
they cover both fact and law stretching from statutes and by-laws.
I
will try to decipher from this thicket what the appellant sought to
frame as grounds of appeal.
(1)
the learned magistrate was biased against appellant who was a
self-actor and in so doing she erred.
(2)
the learned magistrate erred by making a finding based on a document
which was not produced.
(3)
the learned magistrate erred in refusing to go for an inspection in
loco.
(4)
the learned magistrate erred in justifying the killing of the dog,
respondents should have been found liable of the wrongful shooting of
the dog.
(5)
the learned magistrate erred in dismissing appellant's claim for
damages.
These
five grounds I conclude may form the pith of the appellant's
appeal.
In
future litigants are encouraged to seek the advice of legal advisory
centres like the Legal Aid Clinic to prepare grounds of appeal so as
to crisply outline issues for determination by the court.
The
appellant went on to write a long essay and labelling such as heads
of argument. Throughout all the pleadings and what he termed the
pleadings and what his story is consistent. The local authority
killed an innocent dog which was at its owner's stead. The
respondents ought not to have resorted to killing the dog but should
have captured it.
WHETHER
THE MAGISTRATE WAS BIASED AGAINST APPELLANT WHO WAS A SELF ACTOR
The
appellant submits that the trial magistrate was biased, selective and
generally did not treat him fairly simply because he was a self-actor
during the proceedings.
The
allegations are not explained by the appellant.
On
one occasion the appellant made an application to have a witness for
the defendants recalled, and explained why the witness had to be
recalled. The defendants counsel opposed the application, the trial
magistrate gave a ruling why such procedure was not available to the
appellant.
Later
whilst assessing the parties evidence, the court a
quo
preferred to believe the evidence of the defendants to that of the
appellant and went on to point out areas of discontent in appellant's
case.
Appellant
was not happy at all about that evaluation and analysis.
Appellant
proceeded to label the Learned Magistrate as a “player and umpire”
at the same time and appellant labels himself a victim and villain.
An
examination of the proceedings reflect that the appellant was allowed
to present his matter freely and was afforded adequate time to cross
examine the witnesses without interference. He was allowed to prepare
closing submissions at the end of the trial.
His
main grievance is that he lost the claim but that should not form the
basis of calling a trial court biased and partial.
The
allegations are serious but in this court's view baseless.
This
ground of appeal borders on contempt of the trial magistrate moreso
where no particulars of such bias are provided.
Judicial
officers deserve every respect wherever possible and do not deserve
to be labelled partial without providing details of such. The learned
magistrate patently looked at the whole matter and gave reasons for
its decision or judgment.
WHETHER
THE LEARNED MAGISTRATE ERRED BY MAKING A FINDING BASED ON A DOCUMENT
WHICH WAS NOT PRODUCED
The
appellant contends that a by-law referred to by the respondent and
later on alluded to by the learned magistrate in its judgment should
have been discovered by the respondent in court and then provided the
appellant an opportunity to cross-examine respondent's witnesses
about it.
In
this case the document was not produced and the appellant was denied
a chance to have sight of it and ask questions relating to that
by-law.
A
by-law is a subsidiary legislation relating to a particular area to
guide a department or local authority on a specified target and where
such a by-law exists a court can safely quote it or resort to it to
make a decision based on the facts before it.
It
cannot be said to be a document to be discovered as if it is
evidence, it's the law which automatically gives an answer to an
issue before the judicial officer or tribunal.
I
see nothing wrong done by the magistrate in this case relating to the
by-law.
WHETHER
THE LEARNED MAGISTRATE ERRED IN REFUSING TO GO FOR AN INSPECTION IN
LOCO
It
is common cause that the respondents witnesses contradicted on the
exact place where the dog was shot by the police.
One
witness stated in court that the dog ran a distance of 25 metres
after it was shot, the other witness spoke of 4 metres from
appellant's house but died at appellant's house.
The
appellant applied for an inspection in
loco
during the proceedings but the trial magistrate did not grant it. It
declined.
In
my view, there was no harm by the court to adjourn the proceedings
and proceed for inspection although an inspection is at the
discretion of the trial court. The inspection could not have
assisted the appellant given the nature of the defence of the
respondents but would have ensured the appellant that he obtained a
fair hearing.
However,
I do not agree with the appellant that the trial court refused to
grant an application for an inspection because the court had taken
sides and that the trial proceedings was just a waste of time because
the trial court had already passed the verdict.
An
inspection in
loco
remains at the discretion of the court, it is not automatic that when
a litigant requests for an inspection such an application is granted.
There
are no factual nor legal reasons established by the appellant to show
that the judicial officer had predetermined the matter simply because
she dismissed an application for an inspection in
loco.
The
appellant should be reprimanded for laying unjustified accusations
against a court official and at the same time it is also desirable
that a judiciary officer must try by all means by the way he or she
conducts the proceedings that he or she should not be subject to
criticism by litigants by trying to be as far as possible reasonably
fair.
The
site for inspection was in Rusape, the very area where the trial was
held, the court should have made arrangements for such an inspection
in loco and record its findings in the record and rely in such
observations to make its decision all done in the interests of
justice.
However
that ground of appeal has no merit in my view and it ought to be
dismissed.
WHETHER
THE COURT A QUO ERRED IN JUSTIFYING THE KILLING OF THE DOG
From
the appellant's papers filed of record, the appellant contends that
the respondents unlawfully killed his dog and the first respondent's
agents/employees admitted in a letter written to the appellant that
they had killed the subject dog.
The
manner the appellant insists with the civil claim for damages for the
loss of the dog as well as for general damages premised on the loss
shows that his dog is the one which was killed during the operation
executed by the respondents and the police.
Generally
local authorities through by laws have set conditions that owners of
pets should meet.
The
cur should be licensed through payment of $10-00 to the local
authority and this is applicable to the first respondent. When the
licensing fees are paid, the owner of the dog is issued with a collar
which should be tied to the dog's neck. The collars is inscribed
with the name of the owner. The owner is further required to provide
a chain to the dog for purposes of regulating its movement or to
facilitate control of the dog when the owner is moving on public
roads or thorough fares.
As
a further precautionary safety device the owner of the dog should put
a security fence around his or her residence and a safety gate to
avoid the willy-nilly movement of an unsecured dog for safety of the
dog itself and members of the public at large.
The
dog should be confined between the hours of 2100 hours and 0600
hours.
When
a dog is not licensed, collared or secured, the respondent contends
that such a dog qualifies to be stray.
It
is not controverted that on 16 July 2017, appellant's alleged dog
“spooky” did not have a collar around its neck, nor a chain and
of course was not under control by the appellant. Besides the
emphatic insistence by the appellant that the dog belongs to him, he
could not provide any credible evidence to prove ownership of that
dog.
The
letter from the first respondent admitting that the dog belonged to
the appellant was not enough to gauge whether the appellant abided by
the requirements demanded by first respondent to keep a dog at his
premises.
The
issue of ownership in my view is a peripheral one, the crucial
question decision to be made is whether at the time the dog was shot
by the respondents was a stray?
The
appellant admitted that there is no perimeter fence at his house, nor
a wall, the dog freely moved in and out of the premises. At the time
the dog was allegedly shot the appellant was virtually not in control
of the dog. He proactively reacted after hearing the gunshot outside
his house, only to see the dog lying dead.
The
respondents throughout the proceedings vehemently insisted that the
law permits them to eradicate stray dogs. The regulations allow them
to destroy pets which are vicious, diseased and harmful to human
beings.
Tarisai
Leonard Manzonzo
testified that before the operation, first respondent flights an
advert in the Sunday Mail tabloid or drive around suburbs using
hailers advising the public to keep dogs and cats secured, warn them
that if found on the roads stray pets would be captured or
eliminated.
Before
16 July 2017 they had done that and consequently any subsequent
killing of stray dogs was lawful.
The
use of firearm for any operation exposes great risk to the general
public whether the operation is done by the police, the military or
the municipal police, it is inherently dangerous.
It
is necessary that members of the public be given adequate
instructions, warning and information.
It
is not adequate for local authorities to flight adverts in the Sunday
Mail newspaper not all town dwellers can afford to purchase a
tabloid, moreso a Sunday Mail.
It
is instructive that before carrying out an operation of eliminating
stray pets, in addition to the adverts the local authority should
ensure through councillors of each affected ward dissemination of
information for the pending operation, hold meeting with affected
area dropping flyers where possible and place posters on strategic
positions so as to minimise danger to the licenced pets as well as
public, failing which responsibility for tragedies during such
operations may well rest on the shoulders of local authorities.
It
is desirable, I think that the facts of this case be brought to the
attention of local authorities so that they may consider steps can be
taken to improve the dissemination of warning information to those
tasked to execute the operation, so that blame should be moved from
individuals to local authorities.
I
am satisfied in this case that the respondents did not prove that
they extensively exhausted the dissemination of the information
before carrying out the operation.
It
is apparent that many residents of Rusape were unaware of the
operation and were taken by surprise moreso when they heard gunshots
in residential set-ups.
A
gunshot upsets lame hearted people and causes panic it would be
handled comfortably if people are pre-warned.
Had
the appellant met all other requirements to prove his matter chances
were that he had laid a fundamental basis for his claim but he had a
mountain to climb.
The
real issue before the court is not whether the operation of the
respondents was unlawful or lawful, but whether the respondents were
negligent.
It
is only causative negligence that gives rise to liability.
The
conclusion I reach at this stage is that the appellant's dog was
unlicensed, uncollared, unidentified and was in the open when it was
shot. In principle it qualified to be a stray and open to elimination
by the respondents for the purposes of protecting the public at large
from dog bites or harmful diseases.
The
shooting of the dog was lawful in the circumstances.
WHETHER
THE MAGISTRATE ERRED IN DISMISSING APPELLANT'S CLAIM FOR DAMAGES
As
already outlined herein above this is the gravament of the appeal.
The
appellant seeking to rely on negligence sued the respondents for both
general and special damages which arose from the killing of the dog
“spooky” indeed the claim was spooky because it was unsuccessful
and the appellant appealed to this court.
There
are various breeds of dogs stretching from Afgan hound, Ariedale
terrier, Alsatian, barbet, basset beagle, sleath, boxer, greyhound,
bulldog, more than fifty species to include Chihuahua and German
shepherd.
The
appellant was unable to describe what type his was.
These
classes of dogs fetch various amounts on the open market whether one
is acquiring or disposing of them. Without the precise name, one
cannot properly put value to it and this was a challenge which
appellant met during the proceedings.
The
value of $300-00 was not supported by evidence from a dog dealer or a
veterinary doctor, it was put price.
A
litigant is required to look for an expert in the canine field to
properly place monetary value on a specie of a dog. Where such
evidence is lacking it will be taken that the plaintiff had failed to
prove that element.
The
cost of acquiring the dog and maintaining it for a period of 9 years
in my view was irrelevant.
No
one including the appellant knew as when the dog was going to die.
The
appellant had a duty to look after the dog anyway, what was vital was
the replacement value which he placed at $300-00. He ought to have
supported that value by evidence and he failed to discharge that
onus.
The
issue of special and general damages is closely linked to the issue
of negligence.
In
the matter of Maketo
and Another v Wood & Others
1994 (1) ZLR 102 (H) at 104C-D it was held that:
“that
third defendant was liable on the grounds that there was sufficient
relationship of proximity that in the reasonable contemplation of the
third defendant, carelessness on its own part or on the part of its
agents might be likely to cause damages to the plaintiffs…”
In
the matter of Van
Buuren v Minister of Transport
2000 (1) ZLR 292 (H) CHATIKOBO J pointed out the following:
“The
passage shows in my opinion that the most weighty consideration from
which legal duty may be implied in a permissive power is that the
object of the power is to effectuate either a private or a public
right - a right requiring that the power conferred shall be exercised
and therefore capable of enforcement.”
“Negligence
is the failure to take proper care and proper care is the care which
according to law, would be taken by a prudent and reasonable man. The
question whether in any given situation, a reasonable man would have
foreseen the likelihood of harm and governed his conduct accordingly,
is one to be decided upon the consideration of all the circumstances.
The law does not set up impossible standards, and it does not make
extravagant demands. Moreover a person is entitled
to assume that others will take reasonable care of themselves and
will keep the eyes open.”
(My emphasis)
In
the matter of Musadzukwa
v Minister of Home Affairs and Another
the court held that:
“In
order to determine the wrongfulness and reasonableness of any given
conduct the court is enjoined to make a value judgment based among
other things contemporary bori
mores,
in the sense of the convictions of the community as to what fair,
just and equitable.”
MALABA
JA
(as he then was) in United
Bottlers (Private) Limited v Shambawamedza
reiterated the following:
“The
next question to be decided by the Learned Judge was one of fault. It
was whether the defendant's employee negligently caused the damage
suffered by the plaintiff. It has been said that negligence is a
question of fact and the onus of proving it is on the party alleging
it. A person is negligent if he did not act as a reasonable man would
have acted in the particular circumstances. He will be held liable
for the actual consequences of his negligence which are reasonably
foreseeable.”
In
Cape
Town Municipality v Paine
INNES CJ said:
“It
has repeatedly been laid down in this Court that accountability for
unintentioned injury depends on culpa - the failure to observe that
degree of care which a reasonable man would have observed.
I
use the term reasonable man to denote the diligens
paterfamilias
of Roman law - the average prudent person.
Every
man has a right not to be injured in his person or property by the
negligence of another - and that involves a duty on each to exercise
due and reasonable care.
The
question whether, in any given situation a reasonable man would have
foreseen the likelihood of harm and governed his conduct accordingly
is one to be decided in each case upon a consideration of all
circumstances.
Once
it is clear that the danger would have been foreseen and guarded
against by the diligens
paterfamilias,
the duty to take care is established and it only remains to ascertain
whether it has been discharged.”
The
first respondent has a legal duty towards its constituency against
any damage that can arise during the operation for eliminating stray
pets.
Where
a party proves negligence against the local authority where such
actual consequences of local authority's negligence are reasonably
foreseeable, the local authority will be held liable.
However
in casu,
the appellant failed to prove that the dog was lawfully kept at his
place, was licenced and secured, he failed to prove that the dog was
his. He failed to prove negligence on the part of the respondents.
Once
I ruled that the killing of the dog was lawful, there is no basis to
look at the aspect of damages.
Damages
arise from the unlawfulness of the killing and the duty of care on
the part of the respondents.
The
appellant failed to pass that hurdle and hence the appeal was
dismissed in its entirety. Appellant has to pay respondent's wasted
costs.
In
the result, the appeal be and is hereby dismissed with costs.
MWAYERA
J agrees _________________________
Chiwanza
Legal Practitioners,
respondents legal practitioners
1.
See p98 of the record
2.
At p101 of the record
3.
Van Buuren (supra) (at p299)
4.
2000 (1) ZLR 405
5.
2002 (1) ZLR 341 (S)
6.
1923 AD 207 at 216
7.
See also Lomagundi Sheetmetal & Engineering (Pvt) Ltd v Basson
1973 (1) ZLR 356 (A) at 362-3
