Civil
Trial
CHIKOWERO
J:
Plaintiff
claimed that in or about October 2009 defendant, through its
employees, unlawfully and wrongfully removed electrical gadgets from
her farm in Nyazura.
On
the employees being apprehended, defendant went on to make a total of
four undertakings to restore electricity supply at the farm.
The
undetakings were accompanied by assurances to plaintiff to proceed
with her farming activities as the restoration of electricity would
enable her to irrigate her crop.
On
the basis of the undertakings the plaintiff, who had planted ten
hectares of tobacco, went on to plant an additional twenty hectares
of tobacco and twenty five hectares of sugar beans. The undertakings
or promises were not honoured by the defendant. Plaintiff could not
therefore irrigate her tobacco and sugar bean crop.
It
suffered moisture stress and wilted. The soya bean crop for the
2009-2010 season was a total write off. The tobacco harvest for the
same season was bad. It could not even cover her labour costs. It was
therefore a total loss.
She
therefore claimed US$500,000 as damages for the actual loss of
earnings in respect of the total of thirty hectares tobacco crop and
twenty hectares sugar bean crop. In addition she claimed US$200,000
being damages for consequential loss.
By
way of further particulars, plaintiff claimed that US$400,000 were
damages in respect of the thirty hectares of tobacco for the
2009-2010 as well as the 2010-2011 farming seasons. The US$100,000
were damages in relation to the twenty hectares of sugar beans over
the same period.
In
its plea, the defendant averred that no electrical fittings were
removed by it from plaintiff's fields.
A
further averment was made to the effect that the plaintiff's field
had no crops and was not being irrigated because it was not connected
to the national grid.
Plaintiff's
farm had no electricity since 2006 as the power lines transmitting
electricity to the dam and the dam transformer were vandalised.
Defendant
averred that the operation of 5 October 2009 at plaintiff's
homestead which plaintiff foiled, was lawful as it was intended to
recover some electrical equipment for use elsewhere. The same was
lying idle and thus at risk of being stolen or vandalised.
Although
inelegantly drafted and containing evidence, the cause of action is
the aquilian action.
The
requirements of the acquilian action are:
(i)
wrongful or unlawful conduct (act or omission) on the part of the
defendant.
(ii)
the conduct must have led to financial loss.
(iii)
the defendant must have inflicted the financial loss intentionally or
negligently.
(iv)
There must be a causal link between the defendant's conduct and the
loss.
These
requirements are set out in A
Guide to the Zimbabwe Law of Delicit
by G Feltoe 3ed
at p9 and in Nyaguse
v Skinners Auto Body Specialists and Another
HH32/07.
They
also appear in Lee and Honore: The
South African Law of Obligations
2ed
at pp196-202 and in Boberg: The
Law of Delict
Vol
2 at pp24-25.
My
first task is to examine whether plaintiff proved that defendant
removed some electrical gadgets from the former's farm.
It
is common cause that nobody testified to seeing defendant's
employees removing such gadgets from the farm.
Both
parties were agreed that such removal constituted the crime of theft.
None
of the defendant's employees were arrested, prosecuted and
convicted of such theft.
Plaintiff
claimed, without proof, that defendant's workers stole the
electrical gadgets from the farm at night a few days before 5 October
2009.
Plaintiff
did not adduce evidence from either her employees at that time or her
neighbours to show that there was electricity transmission at her
farm in October 2009.
I
have not accepted plaintiff's evidence that four undertakings were
made by the defendant to restore electricity supply to her farm by
end of January 2006.
Plaintiff
testified that Assistant Inspector Dube was present when the first
undertaking was made by Edward Makove at Rusape Police Station.
Edward
Makove was defendant's first witness. He was the defendant's
Rusape depot foreman at the time.
There
is no evidence of this undertaking having been made. It was never
reduced to writing. Edward Makove denied making it.
Under
cross-examination, plaintiff accepted that her evidence on this
aspect would be her word against Edward Makove's word.
She
gave two conflicting reasons for not calling Assistant Inspector Dube
to testify on the first undertaking.
At
first she said he was corrupt. She later stated she had lost track of
him.
Whatever
her true reason for not calling him to testify, the fact remains this
police officer who it is claimed witnessed the making of the first
undertaking to restore electricity within two weeks, never testified.
I
preferred the evidence of Edward Makove in this regard. He was calm
and gave detailed evidence. His evidence accords with the
probabilities and the report that he wrote to Head Office. It was
produced as exh 3.
The
next verbal undertaking was said to have been made by Mr Rafemoyo in
Harare. He was the Zesa Holdings (Pvt) Ltd Group Chief Executive
Officer at the time.
He
too did not give evidence for the plaintiff to substantiate the
making of the undertaking. Plaintiff claimed that he undertook to
cause electricity to be restored within the next two weeks from the
date of his verbal undertaking.
Next
in line was Mr Mhike, the then Zesa Holdings (Pvt) Ltd Chief Loss
Control Officer.
He
too was not called by the plaintiff to testify on the third verbal
undertaking to restore electricity supply at the plaintiff's farm.
No
reasons were given for not calling him, just as no reasons were not
given for not calling Mr Rafemoyo.
Cathrine
Kutsenza was employed as a Loss Control Officer by Zesa Holdings
(Pvt) Ltd at the relevant time. She testified as defendant's second
and last witness.
She
denied making a verbal undertaking to plaintiff that electricity
supply would be restored at the plaintiff's farm. She confirmed
that she had no authority to make such an undertaking.
She
had gone to the farm in January 2010 to investigate the plaintiff's
complaint about lack of electricity at the farm and the allegations
that defendant's employees had stolen transformers and conductors
from the plaintiff's farm. She adhered to her report, which
exonerated defendant's employees.
I
had no reason not to believe her testimony.
Messrs
Chinembiri and Munodawafa, two other employees of the defendant at
the material time, are claimed to have admitted that the defendant's
employees stole the electrical equipment at the plaintiff's farm
and therefore defendant was liable for the plaintiff having no
electricity transmission to irrigate her crop.
Neither
testified for the plaintiff. They did not testify at all.
Munodawafa
is claimed to have been in favour of a gentleman's agreement to
compensate the plaintiff.
The
plaintiff testified that Chinembiri promised that the defendant's
insurers would compensate the plaintiff.
The
insurers rejected the claim for compensation.
The
only acceptable evidence of what Munodawafa and Chinembiri may or may
not have said or done should have come from their mouths. Neither
testified.
The
onus was on the plaintiff to adduce evidence through them to prove
her case.
No
evidence was placed before the court that whatever position was taken
by Munodawafa and Chinembiri represented the official position of the
defendant.
In
fact, the plaintiff confirmed that the official position of the
defendant was a denial of liability hence the institution of the
instant legal proceedings.
The
above are obvious gaps in the plaintiff's case.
In
the absence of records substantiating her evidence she was always
going to have problems in building her case around the defendant's
employees alleged undertakings in a situation where such employees
did not give evidence for the plaintiff.
She
simply did not have the evidence to prove the alleged undertakings.
Assistant
Inspector Dube's absence compounded her woes.
Isaac
Ramire's evidence advanced her case not at all.
He
admitted that he made records on the quantum and nature of her
2009-2010 farming season crop but did not bring such records to
court.
Crop
assessment reports are recorded. In the absence of such records the
court has nothing to go by.
The
plaintiff admitted that she did not take any photographs of her
2009-2010 tobacco and sugar bean crop.
Further,
as it is the 2009-2010 farming season crop which, according to her
testimony, suffered moisture stress and wilted, no reason was given
as to why her claim for damages extended to the 2010-2011 and
2011-2012 farming seasons.
It
was admitted by the plaintiff and her witness that neither produced
documentary evidence of the selling price of tobacco and sugar beans
for the 2009-2010 season nor at all.
Damages
must not be too remote: Business
Law in Zimbabwe
by R H Christie Juta and Co, Ltd 1998 at p125.
I
found no connection between the consequential damages claim of
US$200,000-00 and the absence of electricity and irrigation at the
farm.
The
unproved losses of cattle, fruit trees, irrigation equipment and
roofing sheets had no discernible link with the absence of
electricity and irrigation.
I
have also found that the plaintiff prevaricated both in her pleadings
and evidence between the alleged theft of electrical equipment and
the undertakings as to which constituted her cause of action.
In
any event, she failed to prove either.
In
the result the plaintiff having failed to prove her case in respect
of both liability and quantum it be and is hereby ordered that her
claim is dismissed with costs.
Venturas
and Samukange,
plaintiff's
legal practitioners
Muza
and Nyapandi,
defendant's
legal practitioners
