Delictual Damages re: Bodily, Personal Injury or Contumelia and Non-Patrimonial Loss iro Approach

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

PAIN AND SUFFERING In his book, 'The Law of Delict' by PQR BOBERG, Volume 1, 1984…., the learned author had this to say about the remedy for pain and suffering; “Compensation may be awarded not only for actual physical pain but also shock, discomfort and mental suffering, disfigurement, loss of amenities of life and disability; and loss ...

PAIN AND SUFFERING

In his book, 'The Law of Delict' by PQR BOBERG, Volume 1, 1984…., the learned author had this to say about the remedy for pain and suffering;

“Compensation may be awarded not only for actual physical pain but also shock, discomfort and mental suffering, disfigurement, loss of amenities of life and disability; and loss of expectation of life. For convenience, we speak simply of 'pain and suffering', but the concept embraces all these non-pecuniary misfortunes - past and future - of an injured person. Nor is the list a closed one.”

By virtue of its description, it is not an easy task to provide for pain and suffering in monetary terms in an exact manner. There is no hard and fast rule the various aspects constituting pain and suffering can be measured to come up with an exact figure.

The 'pain and suffering' experienced by each individual varies. No two people can experience the same level of such pain and suffering. This makes it hard to rely on past cases with any certainty except as general guidelines.

Indeed, in Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (SC), GUBBAY JA…, had this to say…,;

“It must be recognised that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task of assessing damages for personal injury is one of the most perplexing a court has to discharge.”

The learned judge went on to highlight eight (8) broad principles that should guide a court in assessing such damages. These include that:-

“1. General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer.

2. Compensation must be so assessed as to place the injured party, as far as possible in the position he would have occupied if the wrongful act causing him the injury had not been committed. See Union Gvt v Warnecke 1911 AD 651 at 665.

3. Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations. See Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.

4. The court is entitled, and it has the duty, to heed the effect its decision may have upon the course of awards in future. See Sigournay v Gill Bank 1960 (2) SA 552 (A) at 555H.

5. The fall in the value of money is a factor which should be taken into account in terms of purchasing power, but not with such an adherence to mathematics as may lead to an unreasonable result, per SCHREINER JA in Sigournay v Gill Bank 1960 (2) SA 552 (A) at 556C. See also Southern Insurance Association Ltd v Bailey N.O. 1984 (1) SA 98 (A) at 116 B-D; Ngwenya v Mafuka SC18-89 (not reported) at page 8 of the cyclostyled copy.

6. No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon or vary according to whether he be a millionaire or a pauper. See Radebe v Hough 1949 (1) SA 380 (A) at 386.

7. Awards must reflect the state of economic development and current economic conditions of the country. See Mairs case supra at 29H; Sadomba v Unity Insurance Co. Ltd & Another 1978 RLR 262 (G) at 270F; 1978 (3) SA 1094® at 1097C; Minister of Home Affairs v Allan SC76-86…, at p 12 of the cyclostyled copy. They should tend towards conservatism lest some injustice be done to the defendant. See Bay Passenger Transport Ltd v Franzem 1975 (1) SA 269 (A) at 274H.

8. For that reason, reference to awards made by the English and South African courts may be an inappropriate guide since conditions in those jurisdictions, both political and economic, are so different.”

See also Marufu v Mawona and Others 1996 (1) ZLR 593; De Klerk & Others v Makwiro HH31-92.

In casu, the plaintiff went through shock and excruciating pain as his hand was being crushed by the rollers. He cried in much pain but his assistant could not switch off the machine. The machine had to be stopped by workers summoned from another section who had to break a chain as the machine would not respond to any of the switches. That must have been an agonizing experience. It is one that adversely affects one's mental faculties; to watch one's hand being crushed. Thereafter, the plaintiff was hospitalised from the 20^thof April 2006 to the 4^thof September 2006. Whilst in hospital, he was in pain as well.

For all this pain and suffering, the plaintiff claimed a sum of USD10,000= (Ten thousand United States dollars).

Previous awards in this jurisdiction were in Zimbabwean dollars. With the advent of the use of multi-currencies, the previous awards in Zimbabwean currency may not be very useful. They are, nevertheless, a guide.

In Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (SC), the plaintiff was a 26 year old medical doctor. He suffered a shortened leg, loss of smell, double vision, memory loss, laboured speech, and emotional instability. He was awarded $35,000= for pain and suffering, loss of amenities, and disfigurement.

In Chamunorwa v Soweto and Another HH212-93, a 50 year old woman was injured. She had metal plates put in her arm and she was left with facial scars. She suffered a 40% disability. She was awarded $15,000= for shock, pain and suffering, and loss of amenities of life.

In Marufu v Mawona and Others 1996 (1) ZLR 593, the plaintiff suffered injuries to his limbs. Both his lower legs and the right femur were broken. The bones protruded. Pins were inserted in both legs. His right leg was now shorter than the other and he had to wear special shoes. He suffered 40% disability. He was awarded $50,000= (Zimbabwean dollars) for pain, suffering, and loss of amenities of life.

In Mabvoro & Another v Muza HH199-85, the two plaintiffs were injured in a road traffic accident. They were husband and wife. The husband was aged 30 years and the wife 24 years. The husband suffered a fracture of the left leg below the knee and at the right wrist. He sustained serious cuts and bruises and was unconscious for some hours. He was hospitalised for two (2) weeks. He was awarded $15,000= (Zimbabwean dollars) for pain and suffering, loss of amenities, and disfigurement.

The wife had fractures in both legs above the knees. A mal union of the other bone in the right leg which was three quarters of an inch shorter than the left. She also had recurrent pain in her legs for the rest of her life. She was awarded $20,000= (Zimbabwean dollars) for pain and suffering, loss of amenities, and disfigurement.

The awards were all in Zimbabwean dollars.

It is not easy to translate that into United States dollars, moreso currently when the real value of the United States dollar does not seem to be well appreciated. What is clear is that in the periods above the United States dollars was generally stronger than the Zimbabwean dollar.

Going by the above awards, which were not just for pain and suffering, it should be apparent that $10,000= US dollars for pain and suffering only is rather high. The award should not be punitive but compensatory for pain and suffering.

It is not in dispute that the plaintiff suffered pain as the rollers crushed his hand. It is also not disputed he was hospitalised. Even after discharge from hospital, it was not disputed the hand had not completely healed. The pain and discomfort continued.

I am of the view that a sum of US$3,000= would be adequate compensation for pain and suffering.

Permanent disability and loss of amenities

Under this heading, the plaintiff claimed US$60,000= (Sixty thousand United States dollars).

The disability that the plaintiff suffered is the loss of part of his right hand, as this was crushed. He has thus lost the use of his right hand. This is a disability he will have to live with for the rest of his life.

The concept of loss of amenities is not an exact concept. In Administrator-General, South West Africa and Others v Kriel 1988 (3) SA 275…, HOEXTER JA had this to say about this concept:-

“The Concept of the loss of amenities of life has been tersely but aptly defined by LORD DEVLIN in H.West and Son Ltd v Shephard [1963] 2 ALL ER 625 (HL) at 636G-H as:-

'a diminution in the full pleasure of living.'

The amenities of life may further be described, I consider, as those satisfactions in one's everyday existence which flow from the blessings of an unclouded mind, a healthy body, and sound limbs. The amenities of life derive from such simple but vital functions and faculties as the ability to work and run; the ability to sit or stand unaided; the ability to read and write unaided; the ability to bath, dress and feed oneself unaided; and the ability to exercise control over one's bladder and bowels. Upon all such powers individual human self sufficiency, happiness, and dignity are undoubtedly highly dependent.”

Factors that may influence the amount to be awarded include the age and sex of the injured person; also the disfigurement and its influence on the plaintiff's personal and professional life. For instance, how many of the activities he was able to do or participate in is he still able to or has he been incapacitated and what did those activities mean in his life?

The plaintiff indicated that he is right-handed and so the loss of the use of his right hand was devastating. He now has to learn to use the left hand. He is no longer able to participate in any activities that require the use of both hands. The disfigurement is visible and he will have to live with that discomfort. As far as employment is concerned, he can no longer be employed where the use of both hands or the right hand is needed.

The disfigurement, whilst prominent, does not appear to be as serious as that in Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (SC). As already alluded to, in that case, a 26 year old medical doctor suffered injuries that affected many aspects of his life such as shortened leg, loss of smell, double vision, memory loss, laboured speech, and emotional instability. In that case, an award of $35,000= Zimbabwean dollars was made.

I am of the view that an appropriate award would be in the sum of $6,000=….,.

Accordingly judgment is hereby entered for the plaintiff and against the defendant as follows:-

1. USD3,000= being damages for pain and suffering.

2. USD6,000= being damages for permanent disfigurement and loss of amenities of life.

3….,.

4. Costs of suit.

View Appeal
SC13-11 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

At the conclusion of the hearing of this matter in the High Court, the court, inter alia, granted absolution from the instance in respect of the appellant's claim for general damages, future expenses, and replacement value for his motor vehicle.

It is only against that portion of the judgment that the appellant has appealed to this Court.

The facts of this case are as follows:

On 23 July 2006, the appellant was involved in a serious road accident with the respondent at the intersection of Breach Road and Kingsmead Road in Borrowdale, Harare. As a result of the accident, the appellant sustained serious injuries. He was conveyed to Parirenyatwa Hospital whilst in a coma. Thereafter, he was detained in the High Dependency Unit for seventeen (17) days. He spent seven-and-a-half months at St. Giles Rehabilitation Centre. He spent a total of about one-and-half years undergoing hospitalization.

It was accepted, during the trial, that, prior to the accident, the appellant had been active in sport and that he had been in charge of sport and discipline at St Johns College, Borrowdale. In particular, he was in charge of rugby, swimming, hockey, and athletics at the school.

The court a quo found, on the evidence, that the accident was the result of gross negligence on the part of the respondent.

In considering the appellant's claim for general damages, the court a quo found, as a fact, that the appellant will require surgical operations, regular physiotherapy, and medication for the rest of his life. The court also found that he experiences weaknesses of the forearm and arm on the left side and that he will suffer from pain for a very long time.

A report prepared by Professor Kalangu stated that the lower plexus should show good improvement but did not indicate to what extent he was likely to improve. The court was of the view, that, in the absence of evidence from the two doctors who attended to the appellant, the extent of his disability was debatable.

On that basis, the court a quo granted absolution from the instance.

On the question of future medical attention, the court accepted that the appellant will require transport to attend physiotherapy and rehabilitation and that he will require future medical attention. However, the court reached the conclusion that the plaintiff had failed to show how many sessions he would be required to undertake to enable the court to assess the future expenses that he was likely to incur.

On that basis, the court also granted absolution from the instance.

On the question of the replacement value of the motor vehicle, the court a quo came to the conclusion that since delictual damages are calculated as at the time of the delict, the appellant had failed to explain, satisfactorily, the delay between the time of issuance of the summons and the time when quotations were obtained.

In particular, the court was of the view that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

As a result, the court a quo also granted absolution from the instance.

In his grounds of appeal, the appellant has attacked the decision of the court a quo on three bases. These are:

1. That the court a quo erred in failing to consider the evidence placed before it and thereafter to exercise its discretion to make an award for general damages in favour of the appellant.

2. The court a quo erred in failing to consider the evidence placed before it and thereafter in exercising its discretion to make an award for future medical expenses in favour of the appellant.

3. The court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

The appellant seeks an order that paragraph 2 of the order of the court a quo be set aside and that the respondent be ordered to pay;

(a) The sum of US$50,000, being the equivalent of Z$1 billion as at the date of judgment, as general damages together with interest thereon at the rate prevailing in the United States of America from the date of judgment to date of payment in full;

(b) The sum of US$5,000, being future medical expenses together with interest thereon at the rate prevailing in the United States from the date of judgment to the date of payment; and

(c) The sum of US$8,000 being the replacement value of the appellant's motor vehicle.

It is appropriate, at this stage, to consider the approach that has been followed by the Courts in the assessment of damages in general, and special damages in particular.

In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:

“…, 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. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance.

But, where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it…,.”

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176H, 187C-D BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C), 655H-656F that:

“'Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.…,.'

There must of course be sufficient evidence before the court for it to be in a position to make a proper assessment of damages; for '…, it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis, for an assessment, and, it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made': per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C) at 118E. See also Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 630.

Thus, where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance…,.”

In, The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT, the learned authors state as follows…,:

“In the case of damages which are capable of exact mathematical computation, such as, for example, medical and hospital expenses, proper evidence establishing the loss and substantiating the precise amount of the claim must be tendered.

Where, on the other hand, mathematical proof of the damages suffered is in the nature of things impossible, then, provided that there is evidence that pecuniary damage in this regard has been suffered, the court must estimate the amount of the damages as best as it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.

However, the application of this principle is dependent upon the plaintiff having adduced the best evidence available to him. Where he has not done so, and the difficulties in assessing the quantum of damages are due to the manner in which he has conducted his case, then the court is justified in ordering, and does order, absolution from the instance.”

The remarks made in the authorities cited above no doubt correctly reflect the law on the approach to damages in bodily and fatal injury cases both in this country and South Africa.

The first ground of appeal that falls for determination by this Court is whether the court a quo erred in failing to consider the available evidence, and, thereafter, making an award for general damages in favour of the appellant.

The amount claimed as general damages before the court a quo was the sum of Z$1 billion as at the date of judgment. The Z$1 billion claimed represented damages for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life, and shortened life expectancy.

The court a quo delivered its judgment on 16 April 2009, and, in respect of this particular claim, granted absolution from the instance. The basis for that decision was that the remark by Dr Kalangu, in his report, that, “lower plexus should show good improvement”, was imprecise. The court a quo was of the view that it was not clear to what extent the improvement would affect the degree of disability. Further, although the report alluded to the need for a repeat study after six months, no such examination appears to have been undertaken. In view of the medical opinion that the appellant's condition could improve with rehabilitation and treatment, the court concluded that the extent of the disability was debatable, and that, therefore, the appellant had not placed sufficient evidence before the court to enable it to make a proper assessment.

It is correct, as the court found, that no further tests were done to ascertain the degree to which the appellant was likely to recover. The fact that the appellant had sustained very serious injuries from which he could never fully recover was common cause. The court accepted, that, following the accident, he had had to be hospitalized for about one-and-a-half years. The court accepted the report by Dr Kalangu, that, the appellant had sustained “complete paralysis of the left and complete paralysis of both lower limbs” (sic). The radiological investigations had revealed a fracture of the left clavicle, fracture of the spine in C5 and C6 and dislocation of the vertebra in C5-6 associated with spinal cord compression. Dr Kalangu estimated the percentage of disability at 60%. He further found that the appellant will have pain for a long time and he will require physiotherapy.

The court also accepted the report by Professor Meikle, of the Clinical Neurophysiology Laboratory, Harare Hospital, that the appellant had weakness of all the muscle groups in the left arm with no movement in the shoulder and elbow muscles. The Professor found the upper plexus to have been seriously injured with no sign of recovery “at present” but the lower plexus was expected to show good improvement.

Although the Professor recommended repeat studies in six months, as already noted, nothing further appears to have happened after the preparation of that report.

The court a quo found that the accident had had a serious effect on the appellant, who, before the accident, had been in charge of sport at St Johns College, Borrowdale, and had generally been active in short. His condition, after the accident, had also affected his relationship with his daughter, who, it appeared, simply could not understand why her father could no longer engage in the activities he used to.

The court a quo further accepted, as fact, that the appellant will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

It certainly would have helped had the appellant undergone further examination thereafter so that the exact degree of his injuries could have been ascertained. This notwithstanding, the evidence placed before the court, in my view, was sufficient to enable the court to make an award.

As WATERMEYER JA aptly put it in Sandler v Wholesale & Coal Supplies Ltd 1941 AD 194, 199:

“…, it must be recognized that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet, there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The extent of the injuries sustained was substantiated.

The doctors suggested that there was some possibility of improvement but this could only be determined if a repeat study was carried out at a later stage. During the trial, the appellant said nothing about such a repeat study. The court itself did not ask in order to clarify the situation.

The failure to lead evidence on this should not have resulted in the appellant being non-suited.

As stated in The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…, in a case such as the present, a Court does not grant absolution but may tend towards conservatism in assessing the damages. The learned authors state:

“The general attitude of the court has been that if there if evidence upon which an estimate, not unfair to the defendant, can be made, it should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff's behalf. Nevertheless, the failure to adduce such evidence would normally operate to the disadvantage of the plaintiff, in that, in its absence, the court would normally tend towards conservatism in computing the damages.”

In my view, this is the approach that the court a quo should have adopted.

I would agree with the appellant that the finding of absolution in these circumstances resulted in an injustice.

It is not uncommon, in claims for general damages, for a plaintiff to claim, and a Court to award, individual damages for pain and suffering, disfigurement, loss of amenities of life, and shortened life expectancy: see The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The finding of absolution must therefore be set aside.

The amount claimed, as at the date of commencement of the trial in October 2008, was the sum of Z$1 billion.

Judgment was given six months later, in April 2009.

At the time, the country was gripped by a hyperinflation environment which quickly eroded the value of money. In February 2009, however, the multiple currency system was introduced. Whilst the Zimbabwean dollar remained legal tender, it is a fact that transactions in the local currency ceased effectively rendering the Zimbabwean dollar valueless.

At the time that the court was asked to make its determination, the appellant was seeking the sum of Z$1 billion. It is that claim that should have been considered by the court a quo.

In terms of section 6 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009 financial institutions were instructed to accept, between 2 February 2009 and 30 June 2009, Old Zimbabwean currency at the rate of one trillion dollars for one dollar of the new currency system.

In terms of section 8 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009, debts incurred before 2 February 2009 were deemed to have been incurred, entered, created, or transferred in terms of the old currency system and were to be settled, discharged, or liquidated in terms of the old currency system provided, however, that, on or after 1 July 2009 every debt was to be settled, discharged, or liquidated in terms of the new currency system only.

In the definition section, “debt” includes anything which may be sued for or claimed by reason of any obligation arising from statute, contract, delict, or otherwise.

By operation of the law, therefore, the claim by the appellant, for general damages, in the sum of Z$1 billion stood to be dealt with in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations.

The one billion dollars claimed under the old currency equated to a fraction of a cent under the new currency system.

Considering the extent of the injuries sustained by the appellant, the claim for damages in the sum of Z$1 billion may not have been an unreasonable sum at the time of commencement of the trial proceedings. However, the law, through the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations (Statutory Instrument 6/09), has converted what would otherwise have been a substantial claim to a most trivial one.

The result is obviously a most unfair one and the appellant, and the general public, would be excused for thinking that there is something seriously wrong with the law or at least the way it works.

The legislature should have been alive to the obvious injustices that were to follow especially because, on 1 February 2009, the Government introduced the multiple currency system under which it became possible to enter into transactions denominated in other currencies: see section 17 of the Finance (No.2) Act 2/09.

The Finance (No.2) Act 2 of 2009 regularized the introduction of other foreign currencies as legal tender with effect from 1 February 2009.

In his Notice of Appeal, the appellant has requested that his previous claim of Z$1 billion be substituted with the figure of US$50,000.

The appellant, in his heads of argument, has argued that the amendment is justified, regard being had to the current economic conditions of the country where an award in Zimbabwean dollars would render such compensation meaningless.

Alternatively, the appellant has argued that the Court, in the exercise of its discretion, can make an award based on the record using the current multiple currency system.

No authority for that proposition has been cited.

Whether or not such a proposition would violate the principle of currency nominalism has not been explored or commented upon. Whether or not the approach in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1989 (3) SA 191 (SC) can be extended to cover a situation such as the present has also not been explored.

An action for damages for bodily injury is derived not from Roman Law but from Teutonic Law, but, like the Aquilian Action, it seeks to place the plaintiff as far as possible in the position he would have been had the wrongful act causing him injury not been committed.

Such a result cannot be achieved by making an award of a fraction of the Zimbabwean cent in favour of the appellant.

In all the circumstances, I am satisfied that there is need for a full investigation into the question of the damages that ought to be awarded in this case.

This Court has not had the benefit of argument on this very important issue.

It seems to me that the most appropriate approach would be to remit the matter to the court a quo for consideration of the whole question of damages.

In Halwick Investments t/a Whelson Transport v Garai Stephen Nyamwanza SC48-09, this court clarified the circumstances under which a matter can be remitted to a trial court.

The second ground of appeal is that the court a quo erred in failing to exercise its discretion to make an award for future medical expenses in favour of the appellant.

In its judgment, the court a quo accepted that the plaintiff will require transport to attend physiotherapy and rehabilitation. However, the court found that it had not been shown how many sessions the appellant will be required to undertake although the appellant had proved that each session would cost $5.

On that basis, the court a quo granted the respondent absolution from the instance.

During oral submission before this Court, the appellant's legal practitioner conceded that the evidence led was incomplete as it was not clear how long the appellant would require pain medication and physiotherapy. He accepted that had evidence been led on this aspect, the Court would have been in a position to properly assess the future medical expenses.

It is clear that the evidence led on future medical expenses was insufficient and that although the evidence was available, none was led to show for how long the appellant would require pain medication and physiotherapy sessions.

In these circumstances, the court, in my view, correctly granted absolution from the instance....,.

1....,.

2. The claim for general damages is remitted to the court a quo for determination.

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO
Ruled By: KUDYA J

The next issue for determination revolves around the measure of damages due to the plaintiff. The plaintiff did not lead evidence on the actual amount expended in treating the girl or for future medical expenses. In argument, counsel for the plaintiff abandoned the plaintiff's claims for past and future medical expenses. He prayed for general damages of ...

The next issue for determination revolves around the measure of damages due to the plaintiff.

The plaintiff did not lead evidence on the actual amount expended in treating the girl or for future medical expenses. In argument, counsel for the plaintiff abandoned the plaintiff's claims for past and future medical expenses. He prayed for general damages of pain and suffering in the sum of US$10,000=.

In Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194…, WATERMEYER JA recognised that the task of estimating the compensation which should be paid for the pain and suffering and permanent disability in consequence of an accident was a difficult one. He proceeded to recognize that-

“Though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there is no scale by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must, necessarily, be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The measure of damages is an estimate of what the judicial officer determining the issue arrives at after considering all the circumstances of the case.

I was not referred, nor was I able from my research to find, any comparable cases which involved a young child. Muzeya v Marais & Anor HH80-04 involved injury caused to an 8 year old girl in a road traffic accident. On 31 March 2004 CHINHENGO J set out…, the nature and extent of the girls' injuries. He observed…, that-

“This child is 100% disabled and the prognosis for her future extremely poor. She will be uneducatable and never be employable. Her life expectancy will be limited.”

He awarded the plaintiff $9 million for pain and suffering and the loss of amenities. At the time, the cross rate between the Zimbabwean dollar and the United States dollar was $5,730= to US$1.00. The award was equivalent to US$1,570=.

The plaintiff's daughter in the present matter suffered a disability which approximates to one-twentieth of the girl in the Muzeya v Marais & Anor HH80-04 case which would amount to US$80= were a mathematical formula to be used. I, however, note that the Muzeya girl was awarded a total of $61 million and US$19,000= for the claims she made, which would amount to approximately US$29,000=.

Counsel for the defendants argued that US$10,000= was an outrageous figure and contended that the sum of US$2,000= would be fair and just in the circumstances of this case.

The six year old girl was maimed for life with a 5 % disability. She is not able to use the left hand. The plaintiff failed to raise money for physiotherapy. The hand has suffered contractures. She is not able to carry out simple tasks like bathing and laundering her school socks or helping her parents with the dishes. The scarring is visible and ugly. She suffered excruciating pain and though the wound has healed, she occasionally experiences pain in cold weather.

While decided case law seems to show that the figure of US$2,000= is on the high side for pain and suffering for a 5% disability on a 6 year old girl, it is fair and just that I order the defendants to pay that amount in deference to their legal practitioners' contention. Accordingly, it is ordered that:

The defendants shall pay to the plaintiff jointly and severally, the one paying the other to be absolved US$2,000= being general damages for pain and suffering and costs of suit.

HH84-09 : LIZZIE MUKUMBA vs THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER OF POLICE
Ruled By: KUDYA J

The next issue concerns the amount of damages due to the plaintiff She is bound by her pleadings and cannot be granted the figure of US$10,000= which she sought in her evidence in chief without first amending her pleadings. The cases that I was referred to took place during food riots which rocked Harare in January 1998 resulting ...

The next issue concerns the amount of damages due to the plaintiff

She is bound by her pleadings and cannot be granted the figure of US$10,000= which she sought in her evidence in chief without first amending her pleadings.

The cases that I was referred to took place during food riots which rocked Harare in January 1998 resulting in the shooting of the plaintiffs in those cases. These were Musakidzwa v Minister of Home Affairs & Anor 2000 (1) ZLR 405 (H); Mugadza v Minister of Home Affairs & Anor 2001 (2) ZLR 134 (H); and Chirinda v Minister of Home Affairs & Anor HH150-03.

Musakidzwa was awarded general damages in the sum of $40,000= on 29 March 2000; Mugadza was granted general damages in the sum of $100,000= on 22 August 2001 while Chirinda was granted general damages in the sum of $1.5 million on 17 September 2003. These cases had far more serious repercussions to the plaintiffs than the present one.

In Mapuranga v Mungate 1997 (1) ZLR 64 (H)…, MALABA J…, stated thus on assault:

“Every person's body is however sacred and inviolable. No other man has a right to meddle with it in the slightest manner except in the circumstances prescribed by the law. The person assaulted is entitled to damages even though he suffered no severe pain or any damage at all other than the insult of having his bodily integrity interfered with: O'Kelly v Jamieson 1906 TS 822; Stoffberg v Elliot 1923 CPD 152.”

Mapuranga did not receive serious physical injuries. His forehead was swollen. He was given pain killer tablets and discharged from hospital on the same day that he visited it for treatment. He was awarded damages for assault of $500= on 8 January 1997. The injuries sustained by the plaintiff in the present case were more serious than those suffered by Mapuranga.

In Terera v The Minister of Defence HH21-07, the plaintiff, an elderly woman who was beaten by soldiers who had been deployed to thwart the Final Push in the security of her home on 4 June 2003, was awarded $4 million in assault damages on 28 March 2007. She was beaten by rifle butts, baton sticks and booted feet. She had tell-tale signs of assault on her buttocks and body.

In Mugwagwa v Minister of Home Affairs & Anor HH183-04, the plaintiff was beaten by plain clothes police officers with baton sticks, as he lay on the ground, on the buttocks, under the soles of his feet and groin. He was beaten on his way to the police station and at the police station until he fell unconscious. Mugwagwa was awarded damages for pain and suffering in the sum $210,000= and punitive damages in the sum of $90,000= on 24 November 2004.

When damages were awarded in Mapuranga v Mungate 1997 (1) ZLR 64 (H), in January 1997, $10.50 in local currency was equivalent to US$1. When Musakidzwa v Minister of Home Affairs & Anor 2000 (1) ZLR 405 (H) was decided, in 2000, the exchange rate was $38 to US$1; Mugadza v Minister of Home Affairs & Anor 2001 (2) ZLR 134 (H), in 2001, it was $55 to US$1; Chirinda v Minister of Home Affairs & Anor HH150-03, in September 2003, it was $824 to US$1. When Mugwagwa v Minister of Home Affairs & Anor HH183-04 was determined, in November 2004, the exchange rate had deteriorated to $5,730 to US$1, and, by March 2007 when Terera (Terera v The Minister of Defence HH21-07) was awarded $4 million the exchange rate should have been $250,000 to US$1 but stood at $250 to US$1 after the revaluation of the local currency by the removal of three zeroes with effect from 1 August 2006 in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation) Regulations S.I.199 of 2006.

Mapuranga's award was equivalent to US$50; Musakidzwa's was equivalent to US$1,052; Mugadza's to US$1,818 and Chirinda's to US$1,820.

The cases of Mugwagwa and Terera are almost comparable to the present matter though the facts have extensive variations. In United States dollars, the two were awarded damages equivalent to US$52 and US$16. I have also considered the eight criteria suggested in Minister of Defence & Anor v Jackson 1991 (4) SA 23 (S).., to guide me estimate a fair and just award of damages.

General damages are not a penalty against the wrongdoer but compensation for the victim. In addition, the award must reflect the state of economic development and current economic conditions in the country.

I estimate that the damages due to the plaintiff for pain, suffering and shock to be in the sum of US$200. It was improper, undesirable, and unlawful for members of the riot squad to invade the residence of a peaceful and law-abiding citizen and fire tear smoke canisters before indiscriminately assaulting all the occupants at the plaintiff's residence. Punitive damages in the sum of US$100 will go some way towards underscoring the outrageous nature of their conduct.

Accordingly, there will be an order for the plaintiff against the defendants, jointly and severally, the one paying the other to be absolved, for:

(a) Payment of the sum of US$200 for pain and suffering.

(b) Payment of the sum of US$100 being punitive damages.

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 ...

HB42-09 : MARGRET MOYO vs MR SIZIBA and DOKOTELA OMNIBUS, represented by R DOKOTELA and TRUST INSURANCE BROKERS
Ruled By: NDOU J

The plaintiff, on 24 August 2004, was travelling in a bus driven by the first defendant, belonging to the second defendant, and insured by the third defendant. Along the Bulawayo-Solusi Road, and at Natani River, the bus was involved in an accident. As a result, the plaintiff received serious injuries, resulting in the institution of the proceedings in ...

SC56-13 : ELIZABETH NDAVA vs TENDAI CHIVIZHE TAKARUWA and ELIZABETH ARTZINGER
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

This is an appeal against the judgment of the High Court, dated 25 October 2012, by which a claim for damages amounting to US$36,475=, in respect of injuries received in a car accident, was dismissed with costs.

HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

DamagesThe next issue for determination revolves on the measure of damages, if any, that are due to each party.The plaintiff abandoned her claim for the following damages:(a) Hospital, x-rays, and other related expenses;(b) Orthopaedic surgeon's costs;(c) Charges for towing the damaged motor vehicle;(d) Costs of replacing spectacles; and(e) Value of ...

Damages

The next issue for determination revolves on the measure of damages, if any, that are due to each party.

The plaintiff abandoned her claim for the following damages:

(a) Hospital, x-rays, and other related expenses;

(b) Orthopaedic surgeon's costs;

(c) Charges for towing the damaged motor vehicle;

(d) Costs of replacing spectacles; and

(e) Value of the groceries lost in the accident.

She however persisted with her claim of:

(a) US$10,000 in respect of damages for pain, shock, suffering and loss of amenities;

(b) US$5,000 in respect of future medical expenses; and

(c) US$9,000 being the pre-accident value of the motor vehicle.

The defendant abandoned his counter-claim for special damages.

He persisted with the following counterclaim:

(a) USD40,000 for pain and suffering and loss of amenities;

(b) USD1,000 for future medical expenses; and

(c) USD4,000, being the pre-accident value of the second defendant's vehicle.

Damages for pain and suffering, disfigurement and loss of amenities

The leading case in our jurisdiction on damages is Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC).

As was stated in that case, general damages for personal injuries are not, and will never be, a penalty. They are compensation intended to place the injured in the position he would have occupied had the wrongful act causing his or her injury not been committed.

In cases where a litigant is seeking compensation for damages for pain, suffering, disablement, and disfigurement, comparable cases, when available, should be used to afford some guidance to assist the Court in arriving at an award which is not substantially out of accord with previous awards in broadly similar cases, regard being had to all factors which are considered to be relevant in the assessment of general damage; see Protea Assurance Co v Lamb 1971 (1) SA 530 (AD).

The plaintiff referred the court to the cases of Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 332 (W); AA Onder Linge Assurancie Associasie Bpk v Sodoms 1980 (3) SA 134 (A); and Ned-Equity Insurance Co. Ltd v Cloete 1982 (1) SA 734 (A).

The cases are equally helpful in determining the damages due to the first defendant.

Whilst these cases may be useful for comparative analysis, each case must be decided on its peculiar set of facts.

In Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 332 (W), the plaintiff was awarded damages for pain and suffering and loss of amenities in the total sum of ZAR56,000 for 100 percent disability. In that case, the plaintiff was reduced, by the accident, to a permanent vegetative state. She was blind, mute, and deaf with no prognosis of recovery. She had to be fed through a nasal gastric tube, her urine being drained through an indwelling catheter.

In AA Onder Linge Assurancie Associasie Bpk v Sodoms 1980 (3) SA 134 (A) the plaintiff was awarded ZAR6,000 for general damages arising from an accident in which he lost the sight of one eye.

In Ned Equity Insurance Co. Ltd v Cloete 1982 (1) SA 734 (A) the plaintiff was awarded damages for pain and suffering and loss of amenities in the sum of ZAR6,000.

Plaintiff's claim

It is not in issue that the plaintiff sustained serious injury to the knee and ankle requiring surgery. She was hospitalized at Westend Hospital for four days and received treatment during that period. She was attended to by Dr Owen Senzai Makoni, an orthopaedic surgeon. She sustained an open dislocation of the left patellar with abrasions on the patellar femoral cartilage. The right knee was bruised together with the left side of the neck and chest. The surgeon attended to these injuries in theatre.

On 19 August 2007, the surgeon compiled a report which he produced in court.

He concluded that the plaintiff had a nasty permanent scar on the left knee and would develop secondary to post traumatic osteo-arthritis of the left knee and ankle joints and would require a total knee replacement in the future. He assessed her permanent disability at 7 and a half percent for the knee joint, 7 and a half percent for the ankle joint, and 5 percent for permanent scars, giving a total disability of 20 percent. He concluded that the plaintiff would have endured severe pain soon after the accident but the pain would subside with time.

The plaintiff testified that she still experienced pain on the left knee when climbing stairs or walking for considerable distances. She can no longer do some of the household chores she used to do and can no longer kneel or jog. At the time of the accident she had abandoned formal employment as an accountant and was into horticulture. Although she had workers who did the work, she used to move around her plot supervising their work. She can no longer move around with ease and this has forced her to return to formal employment as an accountant.

The defendants accepted the plaintiff's degree of permanent disability of 15 percent for the knee and ankle joints. They however disputed the 5 percent awarded for a scar on the knee.

I am persuaded by the submissions by the defendants to discount the 5 percent disability.

Dr Makoni was unable to justify how he arrived at that degree of disability. He conceded that whilst the other degrees of disability, totalling 15 percent, were arrived at based on the Workmen's Compensation Schedule, the 5 percent was not. In his opinion, the assessment was justified because it disfigured the plaintiff in that she could no longer wear short skirts.

The plaintiff did not state, in her evidence, that the scar precluded her from wearing short skirts. It is therefore not clear on what basis the doctor arrived at his conclusion.

Further, I had the benefit of the evidence of Dr Vera, the first defendant's orthopaedic surgeon.

He confirmed Dr Makoni's evidence that scarification was not classified as a disability under the Workmen Compensation Scheme. He testified that a percentage would be awarded for scarification in very special circumstances where the scarification can constitute a set back in the achievement of one's profession. He gave the example of a model. The other special circumstance was where the scarification results in interference with motion of a joint in which event the Workman's Compensation Schedule gives a percentage of what the scar does to movement of the joint as opposed to appearance. In such a case, the doctor would be considering how the disfigurement contributes to disability or might give rise to pain and restricts or affects motion.

The explanation by Dr Vera was very enlightening.

The plaintiff testified that she suffered severe pain soon after the accident and required medication to control the pain. She now occasionally suffers from weather pain but has not seen the need to consult her doctor as the pain usually goes away on its own without medication. Presently, her pain and suffering cannot therefore be said to be severe. The last time that she visited her doctor for medical attention in connection with the injuries was in November 2007. Her latest visit to the doctor, just before the trial commenced, was merely in the furtherance of the prosecution of her claim and not for medical attention.

It appears to me, in view of the cases that the plaintiff referred me to, the claim for pain and suffering and loss of amenities in the sum of US10,000 is excessive.

As observed earlier, in Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 332 (W), the plaintiff in that case was awarded damages for pain and suffering and loss of amenities in the total sum of ZAR56,000 for 100 percent disability. The plaintiff's disability is nowhere near the pain and suffering and loss of amenities suffered by that plaintiff. If one were to use the average exchange rate of the US dollar and rand of about 1:7 (as cited in the November 2007 Reserve Bank Daily Interbank Exchange Rate produced by the plaintiff or the estimate of 1:8 used by the defendants in their closing submissions), the award in Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 332 (W) would come to about US$7,467 for a person reduced to a vegetative state.

The plaintiff is still pursuing her professional career as an accountant despite her 15 percent disability, which is about a sixth of the disability in Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 332 (W).

I am cognisant of the fact that each case is determined on its own merit and an award cannot be arrived at with mathematical precision. I am inclined to award the plaintiff the sum of US$1,000 for pain and suffering and loss of amenities.

Defendant's counter-claim

The first defendant sustained a neck injury, fractured ribs, fracture of the right talus, fracture of the right 5th metacarpal base, blunt abdominal trauma.

He testified that he has developed a permanent limp and a permanent flattened talus. He is a tobacco farmer and is thus required to inspect his crops on foot and can no longer do so as he now finds it difficult to walk because his tendons no longer supported his right foot neither could he ride a motor bike. He was a sportsman but can no longer run or swim because of the leg injury.

He testified that, like the plaintiff, the time he last visited his doctor in connection with his injuries was in November 2007 (six (6) months after the accident). At the time of the hearing he was still in pain.

Dr George Vera, an orthopaedic surgeon, testified that he attended to the first defendant after the accident. On 12 March 2008 he examined an x-ray taken of the defendant's ankle and concluded that he required further surgical attention. In the medium term, the first defendant would require mild pain killers. However, in the long term, he would require stronger ones. The first defendant would develop degenerative osteo-arthritis requiring surgical relief. The doctor testified that the ankle is a weight-bearing joint and subject to high stresses. The injury to the ankle was therefore serious. He assessed the defendant's permanent disability to be 25 percent.

The first defendant submitted that his own damages would be proportional to those awarded to the plaintiff. He submitted that the award of US$10,000 for the plaintiff was excessive given that the plaintiff had suffered 15 percent disability and he had suggested that the plaintiff be awarded US$500.

The plaintiff did not challenge Dr Vera's assessment of the first defendant's degree of disability or that the first defendant has endured pain and suffering and loss of amenities.

Counsel for the plaintiff urged me to make a determination on the extent of the first defendant's disability on the basis of my own observations in court.

I do not believe that it is competent for me to do so for two reasons:

(i) Firstly, I am not a medical expert and do not have the competence to make that assessment.

(ii) Secondly, as already indicated, the plaintiff did not meaningfully challenge the orthopaedic surgeon who attended to the first defendant and is qualified to make the assessment.

The plaintiff appeared, in her closing submissions, to be challenging the quantum of damages as being inconsistent with the injuries that the first defendant sustained.

It appears to me, for the same reasons that I have advanced in respect of the plaintiff's claim, that the first defendant's counter claim for damages in the sum of US$40,000 is excessive. In the result, I award the first defendant damages in the sum of US$1,500.

Future Medical Expenses

Plaintiff's claim

Dr Makoni testified that the knee replacement can be done locally and would cost almost US$10,000 consisting of:-

(a) Surgeon fees US$1,500;

(b) Anaesthetist US$800;

(c) Prosthesis US$2,000;

(d) Assistant's fee US$150;

(e) Hospital fees about US$5,000.

The defendants did not dispute that the plaintiff had suffered 15 percent permanent disability.

Dr Makoni maintained, in his evidence, that the plaintiff would require a knee replacement in the future as her condition would not improve as cartilage does not naturally generate itself. The plaintiff testified of the challenges that she now faces because of the injury to her knee.

All this was not seriously challenged by the defendants.

Dr Makoni had estimated that the medical expenses would be in the region of $10,000. The plaintiff claimed US$5,000. I am of the view that the claim by the plaintiff is reasonable given Dr Makoni's estimate.

Defendant's counter-claim

Dr Vera explained that the amount of US$1,000 claimed by the first defendant would only cover expenses such as consultation fees, x-rays, and pain relief medication in the short term. The surgeon confirmed the need for future medical expenses but was not certain of the exact nature of the future surgical relief.

The plaintiff did not make any closing submissions regarding the first defendant's claim for future expenses. I therefore take it that the first defendant's entitlement to these damages and the quantum thereof are not challenged

I am therefore satisfied that the first defendant has established his counter-claim for future expenses in the sum of US$1,000....,.

The Award

I have concluded that the plaintiff is entitled to damages for pain and suffering in the sum of US$1,000 and US$5,000 for future medical expenses. The total damages that she is entitled to is the sum of US$6,000. I have also made the finding that her contribution to the accident is 40 percent. She is therefore entitled to 60 percent of the total of US$6,000. This translates to damages in the sum of US$3,600.

The total damages due to the defendant are in the sum of US$2,500, being US$1,500 for pain and suffering and US$1,000 for future medical expenses. After my finding that his contribution to the accident is 60 percent, he is entitled to 40 percent of the total of US$2,500. This translates to damages in the sum of US$1,000.

Accordingly, I hereby order as follows:

Plaintiff's claim

1. The defendants be and are hereby ordered to pay the plaintiff the sum of US$3,600, jointly and severally, the one paying the other to be absolved with interest at the prescribed rate, from the date of service of summons to the date of payment....,.

1st and 2nd Defendants' counter claim

1. The plaintiff be and is hereby ordered to pay the first defendant damages in the sum of US$1,000, with interest at the prescribed rate, from the date of service of the counter claim to the date of payment.

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

The affidavit, which was compiled after his discharge from Dandaro Hospital, only mentions the injuries to his left foot and is totally silent as to the injuries to his chest and ribs.He was unable to explain this omission when cross-examined on the point.In contrast to the evidence relating to the plaintiff's leg injury, there is nothing ...

The affidavit, which was compiled after his discharge from Dandaro Hospital, only mentions the injuries to his left foot and is totally silent as to the injuries to his chest and ribs.

He was unable to explain this omission when cross-examined on the point.

In contrast to the evidence relating to the plaintiff's leg injury, there is nothing to substantiate the alleged injuries to his chest and ribs. The out-patient record from Shamva Hospital, dated 10 January 2006, and Dr. Coric's affidavit of 2 February 2006…, are silent in this regard and the plaintiff failed to produce any other medical evidence to support his claim.

After his discharge, he continued to walk with crutches till the end of 2006. His left leg still aches and sometimes numbs and he walks with a severe limp. He continues to visit Dr. Coric every two to three months for examination and prescription of pain-killers.

In assessing pain and suffering, regard may be given to the age of the claimant because an older person has less resistance to pain than a younger person. See VISSER & POTGEITER: The Law of Damages (1993)…,.

With respect to loss of amenities of life, these were described in Administrator-General SWA & Others v Kriel 1988 (3) SA 275 (A)…,. -

“As those satisfactions in one's everyday existence which flow from the blessings of an unclouded mind; a healthy body; and sound limbs. The amenities of life derive from such simple but vital functions and faculties as the ability to walk and run; the ability to sit or stand unaided; the ability to read and write unaided; the ability to bath, dress and feed oneself unaided; and the ability to exercise control over one's bladder and bowels. Upon all such powers individual human self-sufficiency, happiness and dignity are undoubtedly highly dependent.”

The aspect of contumelia is as important as pain and suffering and it is necessary to take into account the public and private embarrassment suffered by the plaintiff as a result of the wrongful conduct. See Robinson v Fitzgerald 1980 ZLR 508…,.

As for disfigurement, this includes, inter alia, scars and limping caused by a leg injury. See VISSER & POTGEITER: The Law of Damages (1993)…,.

Quantum of Damages

The plaintiff claims both special and general damages in respect of hospital and transport costs, loss of income, pain and suffering, contumelia, loss of amenities of life, and permanent disability and disfigurement.

His total claim is for the sum of US$9,789=20.

The plaintiff's uncontested evidence is that he suffered excruciating pain as a result of the assaults upon him and that he underwent a surgical operation to correct the effects of the leg injury that he sustained. Moreover, Dr. Coric's medical affidavit…, indicates that the force used to inflict that injury was severe. Again, the fact that the plaintiff was hospitalised for a prolonged period demonstrates the gravity of his injury, while his relative age would have diminished his capacity to resist pain. As for the future, the plaintiff testified that he still walks with a severe limp and is periodically prescribed pain-killers to assuage his pain.

With respect to future pain and suffering, the plaintiff claims the same amount as he claims for the period before the trial. However, apart from his evidence as to the use of pain-killers, there is nothing to suggest that the extent of his pain and suffering before and after the trial are similar or comparable so as to justify the same award in respect of both periods.

As regards the loss of amenities of life, the plaintiff's claim is based on his inability to assist his children as he was able to do when he was of sound and healthy body. While it might be granted that the plaintiff's sense of helplessness in this respect has reduced his self-esteem, it cannot be accepted that it impinges on the simple but vital functions and faculties described in Administrator-General SWA & Others v Kriel 1988 (3) SA 275 (A)…, to such an extent as to entail substantial diminution in the full pleasure of living.

With reference to the claim for contumelia, it is clear from the newspaper photograph…, that the plaintiff was initially assaulted in a public place in full view of his National Constitutional Assembly colleagues and passers-by. The photograph was also published in The Zimbabwean for all of its readers to see. Moreover, the assault was aggravated by the fact that it was committed by members of the Zimbabwe Republic Police who are State servants paid from public funds. The plaintiff was consequently humiliated and embarrassed and must, therefore, be entitled to appreciable damages for contumelia.

The plaintiff's claim for disfigurement is also clearly established, not only from his testimony but also from Dr. Coric's affidavit…, which evinces the likelihood of permanent injury to the plaintiff's left foot. He still suffers from a limp and his prospect of recovery is slimmer because of his advanced age. However, there is nothing in the evidence before the Court to show that the surgery on his leg resulted in permanent scarring.

Turning to the claim for special damages, the plaintiff is undoubtedly entitled to recover his proven transport costs and medical expenses as per the receipts…, produced at the trial.

Disposition

Having regard to the foregoing findings and the legal guidelines applicable to the plaintiff's specific claims, as well as the conditions prevailing in our economy, I am inclined to award the following amounts as special and general damages -

· Transport costs US$20=

· Hospital expenses US$80=

· Loss of income US$400=

· Shock, pain and suffering US$1500=

· Future pain and suffering US$750=

· Contumelia US$1500=

· Loss of amenities of life US$250=

· Disability and disfigurement US$500=

· TOTAL US$5000=

In the result, judgment is granted in favour of the plaintiff as against the defendants for the payment of -

(i) US$5,000= as special and general damages for unlawful assault;

(ii) Interest on the foresaid sum at the prescribed rate of 5% per annum calculated from the date of the Summons to the date of full and final payment;

(iii) Costs of suit.

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

The plaintiff averred that he was physically shaken by the impact of the accident. He did not break any bones. He was treated for pain and shock. As a result of the accident, he suffers from a consistent back pain and finds it hard to bend. Two weeks before the commencement of trial he ...

HB101-10 : MISHECK VELLAH vs JEALOUS MOYO (alias) MUSHONA and MIKA MOYO
Ruled By: NDOU J

The plaintiff amended his claim to: (a) ZAR3,000= for the loss of two cows; (b) ZAR15,000= for transport to and from hospital; and (c) Damages for pain and suffering in the sum of ZAR500,000=. I will now consider these claims in turn…..,. General Damages for Pain and Suffering The applicant claimed ZAR500,000=. I have quoted from the doctor's report on the kind of pain ...

HB54-13 : NKOSITHABILE MDLONGWA vs MLUNGISI NGWENYA
Ruled By: MAKONESE J

GENERAL DAMAGES FOR PAIN AND SUFFERING From the brief facts of this matter, there can be no doubt that the plaintiff was subjected to pain and suffering and a measure of discomfort as a result of the assault by the defendant. The well established principle is that general damages are those that naturally flow from the ...

GENERAL DAMAGES FOR PAIN AND SUFFERING

From the brief facts of this matter, there can be no doubt that the plaintiff was subjected to pain and suffering and a measure of discomfort as a result of the assault by the defendant. The well established principle is that general damages are those that naturally flow from the wrong and are of a non-pecuniary nature such as pain and suffering, duration and intensity of pain caused by the intentional infliction of harm. The degree of force used in the assault, the nature and extent of injuries suffered by the plaintiff are all taken into consideration in the broadest of the general principle.

It is clear that the nature of the injuries suffered by the plaintiff are not very serious. A more detailed medical report by the examining Doctor would have assisted to properly describe the injuries and therefore the court is limited to those injuries reflected in the “Medical Affidavit” and “Clinical Notes.” The plaintiff essentially suffered a swollen face and shoulder. She was given some pain killers according to the “Clinical Notes.” The injuries suffered are consistent with an attack perpetrated by use of fists. Apart from the physical attack, the court is also entitled to have regard to the embarrassing nature of such an assault.

General damages for personal injuries are not meant to penalise the defendant but to achieve some form of compensation for the plaintiff. The court must ensure, therefore, that the damages awarded are reasonable fair and just. It is relevant to refer to the observations made by WATERMEYER JA in Sandler vs Wholesale Coal Suppliers Ltd 1941 Ad 194…,:

“…, it must be recognised that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must certainly be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The plaintiff has claimed general damages for pain and suffering in the sum of US$10,000=. I have no hesitation to find that the claim is excessive regard being had to the nature of the injuries suffered by the plaintiff. The injuries do not, in my view, warrant a high award of damages. Whilst there are no scales with which the pain endured by the plaintiff can be ascertained, the damages I must award in this case ought to be commensurate with the nature of injuries suffered, which, to my mind, are not by any degree so serious as to justify the amount being claimed by the plaintiff…,.

In all the circumstances of the case, I consider an award of US$1,500= as being reasonable compensation in respect of general damages for pain and suffering.

In the result, I make the following order:-

(a) Defendant is ordered to pay the sum of US$120= as special damages.

(b) Defendant is ordered to pay the sum of US$1,500= as general damages for pain and suffering.

(d) Costs of suit.

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

Quantum of Damages The first plaintiff's claim for damages is under four headings, namely; (i) Shock and trauma $10,000= (ii) Pain and suffering ...

Quantum of Damages

The first plaintiff's claim for damages is under four headings, namely;

(i) Shock and trauma $10,000=

(ii) Pain and suffering $10,000=

(iii) Permanent disfigurement $65,000=

(iv) Loss of amenities $30,000=

In considering these four heads, I will palliate (i) and (ii), that is, shock and trauma and pain and suffering as one then (iii) and (iv).

1) Pain and suffering.

In the Law of Delict, PQR BOBERG Vol 1984…, the learned author had this to say about the remedy of pain and suffering;

“Compensation may be awarded not only for actual pain but also shock, discomfort and mental suffering, disfigurement, loss of amenities of life and disability and loss of expectation of life.For convenience we speak simply of “pain and suffering”, but the concept embraces all those non-pecuinary misfortunes – past and future of an injured person. Nor is the list a closed one.”

The pain and suffering experienced by a person varies. No two individuals can experience the same level of pain and suffering. Hence, it's difficult to rely on past cases except as general guidelines….,.

In casu, the first plaintiff, Prince Chinembiri, went through shock and excruciating pain as he was being electrocuted to an extent that he and his colleagues who were assisting passed out. That was a near death experience. Thereafter, the first plaintiff was hospitalized for three months. Whilst in hospital he was in pain and had to undergo major surgeries, that is, skin grafting and amputation of the right arm. For all this pain and suffering the plaintiff claimed a sum of USD20,000=.

In Muzenga v Marais and Anor HH80-04 CHINHENGO J set out…, the nature and extent of injuries he observed…, that:

“The child is 100% disabled and the prognosis of her future extremely poor; she will be uneducatable and never be employable and her life expectancy will be limited.”

He awarded the plaintiff $9 million for the pain and suffering and loss of amenities. At the time, the cross rate between the Zimbabwean Dollars was $5,730= to US$1=. The award was equivalent to US$1,570=.

In Minister of Defence & Anor v Jackson 1990 (2) ZLR 1, the plaintiff was a 26 year old medical doctor who suffered a shortened leg, loss of smell, double vision, memory loss, labored speech and emotional instability. He was awarded $35,000= Zim dollars for pain and suffering, loss of amenities and disfigurement.

In Gwiriri v Highfield Bag (Pvt) Ltd 2010 (1) ZLR 160 H, a plaintiff whose hand was crushed by rollers of a machine he was working on was granted USD3,000= for pain and suffering.

Going by the above awards, it should be apparent that US$20,000= dollars for pain and suffering is rather high. The award should not be punitive but compensatory for pain and suffering.

It is not in dispute that the plaintiff suffered pain as he was being electrocuted and when his hand was being amputated. The pain continued even after discharge from hospital. I am of the view that a sum of US$6,000= would be adequate compensation for pain and suffering.

Permanent disfigurement and loss of amenities would be combined into one heading. Under this heading the plaintiff's total claim is US$95,000=.

The disability the plaintiff suffered is the loss of his right arm as it was amputated. This is a disability he will have to live with for the rest of his life. The concept of loss of amenities of life has been tersely but aptly defined by LORD DEVLIN in H West and Son Ltd v Shepherd 1963 (2) ALL ER 625 HL…., as:

“'A diminution in the full pleasure of living.'''

Factors that can influence the amount to be awarded include the age and sex of the injured person and the disfigurement and its influence on the plaintiff's personal and professional life. For instance, how many of the activities he was able to do or participate in is he still able to do or has he been incapacitated for and what did those activities mean in his life?

The first plaintiff, Prince Chinembiri, indicated that he is contractured in both legs and suffered tendon damage. The first plaintiff's affidavit of evidence is contradictory as to the arm which was amputated. Para 11 of the same talks of the right arm; para 24(a) talks of left arm. Whichever way, there was an amputation of an arm. The plaintiff further indicated that he cannot hold or pick anything with the remaining hand, cannot write, can no longer drive.

The disfigurement is visible and he will have to live with that discomfort. The disfigurement, whilst prominent, does not appear to be as serious as that in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1…,. In that case, a 26 year old doctor suffered injuries that affected the said functioning of his faculties of smell, vision, speech, emotional instability and a shortened leg. In that case, an award of $35,000= Zimbabwean dollars was made. In Gwiriri v Highfield Bag (Pvt) Ltd 2010 (1) ZLR 160 H, the plaintiff claimed US$60,000= for disability and loss of amenities…, and was granted $6,000=.

I am of the view that an appropriate award would be in the sum of US$8,000=. Accordingly, judgment is hereby entered for the first plaintiff and against the defendant as follows:

1. USD$6,000= for pain and suffering.

2. USD$8,000= being damages for permanent disfigurement and loss of amenities of life.

3. Costs of suit.

The second plaintiff is Paradzai Mupandenyama. This plaintiff's claim for damages is under five headings:

1. Trauma and shock US$ 80,000=

2. Pain and suffering US$100,000=

3. Permanent disfigurement US$400,000=

4. Loss of essential body parts US$250,000=

5. Loss of amenities US$ 800,000=

US$1,630,000=

Pain and suffering; I will palliate trauma and shock, pain and suffering into one claim of US$180,000=.

The same considerations for plaintiff one apply here hence an award of US$6,000= will be awarded for pain and suffering considering point no. 6 in the guideline of damages assessment enunciated in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1.

Permanent disfigurement, loss of essential body parts and loss of amenities would be palliated into one. The plaintiff claimed US$1,450,000= as per his affidavit of evidence filed of record.

The same considerations as with the first plaintiff apply and an award of US$10,000 is hereby granted for loss of amenities and permanent disfigurement….,.

3. Alexio Tembo

The third plaintiff's claim for damages is under five headings:

1. Shock and trauma $15,000=

2. Pain and suffering $15,000=

3. Permanent disfigurement $40,000=

4. Loss of essential body parts $10,000=

5. Loss of amenities $40,000=

6. Cost of suit

4. Kudakwashe Kapfunde

The fourth plaintiff's claim for damages is under four headings:

1. Shock and trauma $15,000=

2. Pain and suffering $35,000=

3. Permanent disfigurement $35,000=

4. Loss of amenities $20,000=

5. Clemence Shawu

This plaintiff claimed damages under the headings:

1. Shock and trauma $15,000=

2. Pain and suffering $10,000=

3. Permanent disfigurement $20,000=

4. Loss of amenities $40,000=

6. Orchard Kanjado

Claimed damages under the headings:

1. Shock and trauma $ 5,000=

2. Pain and suffering $10,000=

3. Permanent disfigurement $15,000=

4. Loss of amenities $10,000=

In applying the same principles above, I make the following awards. Judgment is entered in favour of plaintiffs as follows:

1. First plaintiff:

To be paid;

(i) $6,000= for pain and suffering.

(ii) $8,000= being damages for permanent disfigurement and loss of amenities for life.

(iii) Costs of suit.

2. Second plaintiff:

(i) $6,000= for pain and suffering.

(ii) $10,000= damages for permanent disfigurement and loss of amenities.

(iii) …,.

(iv) Costs of suit.

3. Third plaintiff:

(i) $6,000= for pain and suffering.

(ii) $9,000= for permanent disfigurement and loss of amenities.

(iii) Costs of suit.

4. Fourth Plaintiff:

(i) $6,000= for pain and suffering.

(ii) $7,000= for permanent disfigurement and loss of amenities.

(iii) Costs of suit.

5. Fifth plaintiff:

(i) $5,000= for pain and suffering.

(ii) $3,000= for permanent disfigurement and loss of amenities.

(iii) Costs of suit.

6. Sixth plaintiff:

(i) $4,000= for pain and suffering.

(ii) $2,000= for permanent disfigurement and loss of amenities.

(iii) Costs of suit.

Interest shall be payable at the prescribed rate from date of judgment to date of final payment for all the six plaintiffs.

HMA19-17 : VENGAI RUSHWAYA vs NELSON BVUNGO and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

Contumelia, the indignity or humiliation suffered, are general damages. Like pain, shock and suffering, there are no scales to measure it. The final award is in the discretion of the court. The discretion is exercised judiciously, not whimsically, on the basis of the information made available. At the end of the day, the court ...

HB118-16 : ABEL MKHWANANZI vs TIRIVAVI TOTAMIREPI and MINISTRY OF SOCIAL WELFARE
Ruled By: MAKONESE J

On the 12th February 2012, the plaintiff was a passenger in a commuter omnibus bearing registration number ABZ 0276. At the 24km peg, along the Bulawayo-Beitbridge road, there was a motor vehicle collision involving a Mahindra motor vehicle, registration number G-LL6641, and the commuter omnibus. The vehicle belongs to the second defendant and was being driven by ...

On the 12^th February 2012, the plaintiff was a passenger in a commuter omnibus bearing registration number ABZ 0276. At the 24km peg, along the Bulawayo-Beitbridge road, there was a motor vehicle collision involving a Mahindra motor vehicle, registration number G-LL6641, and the commuter omnibus. The vehicle belongs to the second defendant and was being driven by the first defendant during and in the course of his employment. According to the police report the accident was caused by the negligence of the first defendant who was charged with and convicted of culpable homicide in consequence thereof.

The first defendant was fined US$400= and his driver's licence was cancelled and he was prohibited from driving for a period of six months.

The plaintiff was seriously injured in the collision. The particulars concerning his injuries and their sequelae will be canvassed in more detail in this judgment. At the time of the accident the plaintiff was aged 67 years. He was no longer employed having been retired at 65 years. As a result of the collision, the plaintiff sustained severe injuries being a fracture of the right hip and tibia and had a permanent disability of 37%. The plaintiff had to undergo surgery, and, in subsequent years, had to seek constant medical attention within and outside Zimbabwe. The plaintiff instituted proceedings for damages for bodily injuries.

The defendants entered appearance to defend. The defendants were barred for failing to file their plea timeously. The matter was placed on the unopposed roll. I directed the plaintiff to file detailed Heads of Argument in support of the claims which was done. The plaintiff's prayer is for default judgment for payment of the sum of US$79,561= broken down as follows:

(a) Special damages for medical expenses in the sum of US$53,961=.

(b) General damages being:-

(i) Disfigurement in the sum of US$7,500=.

(ii) Loss of amenities of life in the sum of US$13,600=.

(iii) Pain and suffering in the sum of US$4,500=.

(d) Costs of suit…,.

I now turn to consider the quantum of damages suffered by the plaintiff.

The plaintiff clearly suffered serious injuries in the accident. In brief, he sustained a right hip and right tibia plateau fractures. Surgery was performed at United Bulawayo Hospitals. He has a permanent disability of 37%. According to the clinical notes of a specialist orthopaedic surgeon, Mr C. Msasanure, the plaintiff had a dynamic hip screw fixation on the right hip. He also had a debridement and external fixation of the right tibia plateau fracture. In July 2013, the plaintiff travelled to South Africa for further treatment. Dr Z. A. Peer of the Department of Orthopaedics at the Tambo Memorial Hospital prepared a report where he confirms that the plaintiff was treated at Charlottee Maxeke Hospital. The report notes that the plaintiff had a fracture on his right femur. He also had multiple other problems from an orthopaedic point of management in that he required an extensive operation on his right thigh. There was need for the removal of the hardware with re-alignment osteotamies of the femur and a possible knee replacement to get him back to walking again. He would need rehabilitation. A further report by Dr D. Moyo, a specialist Orthopaedic Surgeon, indicates that the plaintiff had established MMI (Maximum Medical Improvement). Maximum Medical Improvement (MMI) is defined as the point at which the injured person's condition had stabilized and further functional improvement is unlikely - despite continued medical treatment or physical rehabilitation. A treatment plateau in the patient's recovery is reached and that is as good as the patient is going to get. In some instances it may mean that the patient has fully recovered from the injury. At Maximum Medical Improvement (MMI), no further healing or improvement is expected and the degree of permanent or partial impairment can now be determined. In the instant case, Dr D. Moyo ascertained that the overall Whole Person Impairment rating was 37% (degree of permanent disability).

In a supplementary affidavit filed on 22 March 2016, the plaintiff states that his right knee is not fully functional. His mobility is now restricted. He can no longer walk upright as he used to do before the accident. He now walks with the aid of a walker. The plaintiff further states that he can no longer perform the simple task of bathing and dressing up un-aided. He can no longer embark and alight from vehicles without assistance. In essence, the plaintiff has difficulty in using public transport. He has to hire vehicles for the purposes of moving from one point to another which is very costly.

For the purposes of assessing the quantum of damages, I will have to rely, to a large degree, on the medical report by Dr D. Moyo which is fairly detailed. The full report is set out in the following terms:-

“Impairment Evaluation: Mr Abel Mkhwananzi

He was involved in a road traffic accident in February 2012.

He has now established MMI (Maximum Medical Improvement). He has an ankylosed right knee and a painful right hip with an internally rotated right lower limb.

Right knee

1. Class Diagnosis 4 with a default rating of 75% of the lower extrimity i.e. ankylosis of right knee with flexion limited to about 5 degrees. Also there is poor alignment.

2. Grade Modifier Functional History = 3 Antalgic unstable transfers with routine use of gait aids.

3. Grade Modifier Physical Examination = 4 Range of motion – very severe.

4. Grande Modifier Clinical Studies = 4 Severe deformity.

Right Hip

1. Class diagnosis 3 with a default rating of 30% of lower limb. Had a right intertrochanteric fracture and communited fracture of the mid shaft.

2. Grade Modifier Functional History = 3.

3. Grade Modifier Physical Examination = 4.

Knee rating shifts – 1 to 71% while the hip rating shifts by + 1 to 32% translating to 28% and 13% Whole Person Impairment.

The overall Whole Person Impairment rating is 37% (degree of permanent disability).”…,.

Special Damages

Special damages relate to damages that have already occurred and are capable of precise mathematical calculation. These are the damages associated with costs of medical bills that should be proved by placing before the courts the amounts incurred by the plaintiff in seeking and obtaining medical treatment. The plaintiff was hospitalized and underwent surgical procedures, namely:-

(i) Dynamic hip screw fixation of the right hip;

(ii) Debridement and external fixation of the tibia plateau fracture at a cost of US$3,961=.

(iii) The plaintiff has to undergo further surgical procedures for a total knee replacement and rehabilitation at a cost of ZAR500,000= (which equates, at the prevailing exchange rate, to US$33,348=).

The cost for the total knee replacement is broken down as follows:

Ward fees R150,000=

Theatre R150,000=

Implant R100,000=

Dispensary drugs R100,000=

R500,000=

I have no difficulty at all in accepting the claim for future medical treatment as sufficient evidence has been placed before the court detailing the exact nature of treatment to be rendered to the plaintiff as well as the precise costs thereof.

General Damages

The plaintiff has claimed general damages for disfigurement, pain and suffering as well as loss of amenities of life.

In the case of Minister of Defence & Another v Jackson 1990 (2) ZLR 1 (SC), the court indicated that there are certain broad principles which govern such awards, some of which are:

1. General damages are not a penalty but compensation. The award is designed to compensate the victim and not punish the wrongdoer.

2. Compensation must be assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed.

3. Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest considerations.

4. No regard is to be had to the subject value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, according to whether he be a millionaire or a pauper.

Pain and suffering

The plaintiff has claimed an amount of US$4,500= for pain and suffering.

In assessing damages for pain and suffering, the prime considerations are the duration and intensity of the pain. The plaintiff has undergone surgery and this process entailed the painful procedures of screw fixation and debridement. The plaintiff is yet to undergo further surgery for total knee replacement and rehabilitation and this procedure will no doubt cause pain and suffering.

I find that the sum of US$2,500= is reasonable in the circumstances.

In arriving at this figure, I have considered the case of Gwiriri v Highfield Bag (Pvt) Ltd 2010 (1) ZLR 160 (H). In this case, CHITAKUNYE J awarded the plaintiff, who had effectively lost the use of his right hand during an accident at work, the sum of $3,000= for pain and suffering and $6,000= for permanent disfigurement and loss of amenities of life. See also Mafusire v Greyling & Anor 2010 (2) ZLR 198.

Loss of amenities of life and disfigurement

The plaintiff claimed US$13,600= in respect of loss of amenities of life and US$7,500= in respect of disfigurement.

I observe that the plaintiff was aged 67 years at the time of the accident. He had reached retirement age and was no longer formally employed. He now has to walk with the aid of a walker. He has suffered loss of amenities of life and ordinary pleasures of life have been diminished. The plaintiff's injuries have resulted in a disability rated at 37% (Whole Person Impairment ratio). The plaintiff can no longer do the ordinary chores without the need for assistance. The allowance for future contingencies can never be determined with accuracy. This was well put by MARGO J in Goodall v President Insurance Co Ltd 1978 (1) SA 389 (H)…, when he said:-

“In the assessment of a proper allowance for contingencies, arbitrary considerations must inevitably play a part, for the art of science or foretelling the future, so confidently practiced by ancient prophets and soothsayers and by modern authors of a certain type of almanack is not so numbered among the qualifications for judicial service.”

I am satisfied that an award of US$5,000= in respect of loss of amenities of life and US$2,500= in respect of disfigurement is appropriate regard being had to the particular circumstances of the plaintiff and to decided cases I have referred to.

In the result, it is ordered as follows:-

1. Default judgment be and is hereby entered in favour of the plaintiff in the sum of US$47,309= broken down as follows:

(a) Special Damages, being medical expenses, in the sum of US$37,309=.

(b) General damages, being:

(i) Loss of amenities of life in the sum of US$5,000=.

(ii) Disfigurement in the sum of US$2,500=.

(iii) Pain and suffering in the sum of US$2,500=.

2. Interest at the prescribed rate from date of service of summons to date of full payment.

3. Costs of suit.

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 GENERAL DAMAGES The plaintiff claims general damages for pain and suffering, contumelia and loss of amenities of life and permanent disability and disfigurement in the sum of $1,500,000= and $21,000= for special damages. Under the category of general damages, he claims for pain and suffering, contumelia, loss of amenities of life and permanent disability and disfigurement. A cellphone, $168=88 and ...

CLAIM FOR GENERAL DAMAGES

The plaintiff claims general damages for pain and suffering, contumelia and loss of amenities of life and permanent disability and disfigurement in the sum of $1,500,000= and $21,000= for special damages.

Under the category of general damages, he claims for pain and suffering, contumelia, loss of amenities of life and permanent disability and disfigurement.

A cellphone, $168=88 and a line, loss of income, compensation for loss of revenue from the plaintiff's farming activities are claimed under special damages.

The total claimed in damages is $1,521,400=.

The plaintiff is entitled to general damages. General damages are not meant as punishment but are compensatory in nature. The rationale is to replace the injured party as far as possible in the position he would have occupied if the wrongful act causing injury to him had not been committed. See Union Govt v Warneck 1911…,. for that approach.

In Law of Delict, PQR BOBERG Vol 1, 1984…, the author states the following about pain and suffering;

“Compensation may be awarded not only for actual pain but also shock, discomfort and mental suffering, disfigurement, loss of amenities of life and disability and loss of expectation of life; for convenience we speak simply of 'pain and suffering'. But the concept embraces all those non-pecuniary misfortunes, past and future, of an injured person. Nor is the list a closed one.”

The claim for permanent disability and disfigurement is for $200,000=.

The plaintiff produced a report from Dr Vera which shows that he suffered damages and his percentage disability is 35 per cent. The report describes the injuries he suffered but does not suggest that he was permanently disfigured. By the time this matter was tried, the wound had healed; the court was shown a scar on his left thigh that remained as a result of the shooting. He still walked well and was not limping. There were no indications that he has any permanent disability that ensued.

I find no justification for an award under this category.

The plaintiff has suggested a figure of $100=. In considering the appropriate award, the court has considered the sentiments expressed in Minister of Defence v Jackson 1990 (2) ZLR (1) 7 where…, the court remarked thus;

“It must be recognized that translating personal injury into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task therefore of assessing damages for personal injury is one of the most perplexing a court has to discharge. This is not withstanding certain broad principles that have been laid down which govern the obligation.”

The court went on to lay out the considerations the court has to take into account which may be summarised as follows;

1. That the damages are not a penalty but compensation.

2. Compensation must be assessed as to replace the injured party as far as possible in the position he would have occupied if the wrongful act had not been committed.

3. No scales exist by which pain and suffering can be measured and the quantum of compensation can only be determined by the broadest general consideration.

4. The court is entitled, and has the duty, to heed the effect an award may have upon the course of awards in the future.

In assessing damages, the court has considered that the plaintiff was deprived of his personal liberty for 14 months whilst he awaited the finalisation of his trial. He also had to nurse a gunshot wound while on remand. I have considered awards granted in cases of a similar nature. In Muyambo v Ngomaikarira HH138-11, an award of $3,000= was made for damages for unlawful arrest and detention. An award for both special and general damages was made in Nyandoro v Minister of Home Affairs HH196-10.

I am satisfied that an award of $2,000= for general damages will meet the justice of this case….,. I am satisfied that the plaintiff had proved part of his claim on a balance of probabilities.

In the result, it is ordered as follows;

The defendants are ordered, jointly and severally, the one paying the other to be absolved, to pay the following;

1. The sum of $2,000= as general damages.

2. Payment of $168=.

3. Costs follow the event.

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

The plaintiff has not proved that he incurred any medical expenses in treating his wound.

HH148-15 : JUDITH NYOKA vs NYAMWEDA BUS SERVICE and ZIMNAT LION INSURANCE
Ruled By: MUSAKWA J

The plaintiff is seeking delictual damages for injuries arising from an accident that occurred when she was a passenger on a bus operated by the defendant. In 2006, the plaintiff issued summons claiming delictual damages arising from an accident in which she was a passenger on a bus that was operated by the defendant….,. She has persisted in her ...

The plaintiff is seeking delictual damages for injuries arising from an accident that occurred when she was a passenger on a bus operated by the defendant.

In 2006, the plaintiff issued summons claiming delictual damages arising from an accident in which she was a passenger on a bus that was operated by the defendant….,.

She has persisted in her claim for general damages under the following heads -

(a) Shock, pain and suffering.

(b) Permanent disability and loss of amenities of life.

In respect of pain and suffering, the plaintiff claims US$30,000=. In her affidavit she explains that she continues to experience pain up to today. In respect of permanent disability and loss of amenities of life she claims US$25,000=. Under this head she claims she sustained permanent disfigurement.

The plaintiff was a fare-paying passenger on the defendant's bus. On 15 May 2006 the bus was involved in an accident along the Gweru-Bulawayo road. The plaintiff sustained the following injuries -

(a) Fracture of the left radius.

(b) Fracture of the distal left fibula.

The plaintiff was hospitalised from 16 May 2006 to 19 July 2006 whilst she underwent treatment.

Regarding pain, she was reported to have been in severe pain during the first week. This necessitated the use of narcotic analgesia. Severe pain was experienced after every operation for forty eight hours. Further pain was experienced from bed sores on the left buttock. Permanent disability from ugly scarring of the left leg was put at thirty per cent.

The assessment of general damages is a difficult exercise. The amounts claimed by the plaintiff are not comparable to any decided cases. The case authorities cited by her counsel are not helpful at all.

A useful authority on the principles to apply in such claims is the case of Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (SC). In that case GUBBAY JA stated the following…, -

“It must be recognised that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task therefore of assessing damages for personal injury is one of the most perplexing a court has to discharge. This notwithstanding, certain broad principles have been laid down which govern the obligation. These are:

(1) General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer.

(2) Compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed. See Union Government v Warnecke 1911 AD 651 at 665.

(3) Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations. See Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.

(4) The court is entitled, and it has the duty, to heed the effect its decision may have upon the course of awards in the future. See Sigournay v Gillbanks 1960 (2) SA 552 (A) at 555H.

(5) The fall in the value of money is a factor which should be taken into account in terms of purchasing power, 'but not with such an adherence to mathematics as may lead to an unreasonable result', per SCHREINER JA in Sigournay's case, supra, at 556C. See also Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 116B-D; Ngwenya v Mafuka SC18-89 (not reported) at p8 of the cyclostyled copy.

(6) No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, according to whether he be a millionaire or a pauper. See Radebe v Hough 1949 (1) SA 380 (A) at 386 E.

(7) Awards must reflect the state of economic development and current economic conditions of the country. See Mair's case, supra, at 29H; Sadomba v Unity Insurance Co Ltd & Anor 1978 RLR 262 (G) at 270F; 1978 (3) SA 1094 (R) at 1097C. Minister of Home Affairs v Allan SC76-86 (not yet reported) at p12 of the cyclostyled copy. They should tend towards conservatism lest some injustice be done to the defendant. See Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A) at 274H.

(8) For that reason, reference to awards made by the English and South African Courts may be an inappropriate guide since conditions in those jurisdictions, both political and economic, are so different.”

In Christopher Gwiriri v Star Africa Corporation (Pvt) Ltd t/a Highfield Bag (Pvt) Ltd HH20-10 the plaintiff was involved in a work-related accident where he sustained permanent disability which was assessed at 65%. He was hospitalised for close to five months. He was subsequently discharged from employment on medical grounds. The court awarded US$3,000= for pain and suffering and US$10,000= for permanent disability.

In Tambudzai Mafusire v Lewis Greyling HH173-10 the plaintiff and the first defendant were involved in a collision whilst driving their respective vehicles. The court found contributory negligence on the part of the plaintiff. It apportioned 40% negligence to the plaintiff and 60% to the first defendant. It awarded US$3,600= for pain and suffering and future medical expenses to the plaintiff whilst it awarded US$1,000= to the first defendant for similar damages.

Coming to the present matter, the medical report which the plaintiff relies on was compiled in 2006. The report noted that permanent disability from forearm fractures should be assessed after removal of hardware from the radius and ulna. It was recommended that the removal of hardware be done after twelve months. It was noted that the pain in the forearm might interfere with work or sporting activities.

Apart from the noted disabilities, the plaintiff claims that her performance of household duties has become unbearable. She claims she no longer walks properly and cannot fend for her family as she used to do. Prior to the accident she used to do cross-border trading. This latter assertion is related to loss of future earnings which the plaintiff abandoned.

In making the award, I have taken into account that there is no additional medical report. In all probability the plaintiff may still experience pain the nature of which is not readily ascertainable. She may no longer be as active as she used to be. I will also take into account that the first defendant's insurers indemnified the plaintiff although the quantum was not disclosed. I would therefore award US$2,500= for pain and suffering and US$8,000= permanent disability and loss of amenities of life.

In the result, it is ordered that -

(a) The defendant pays the plaintiff US$10,500=.

(b) The defendant pays the costs of suit.

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY
Ruled By: MAKONESE J

Where a defect or dangerous condition in the conductor or any appliance of a power company, causing injury to a person or persons, negligence does not per se give rise to liability as against the power company. Liability on the part of the power company turns on whether it knew, or by the exercise of reasonable diligence, should have known of the defect in time to have avoided injury.

The standard test for determining negligence in regard to liability for delictual damages is whether a diligent paterfamilias in the position of the defendant would have foreseen the reasonable possibility of his conduct injuring another person or property and causing the patrimonial loss. Negligence arises where the reasonable person would have taken reasonable test to guard against the occurrence of injury but fails to take such steps to prevent harm from occurring.

On the night of the 13th December 2015 there was a heavy storm in the Hozheri village of Gweru. During the overnight storm, a bolt of lightning struck a wooden electricity pole carrying three electricity conductors, destroying the insulator pin and insulation porcelain on the cross-arm, causing one of the three conductors to dislodge from its position on the cross-arm, leaving it hanging two metres above the ground.

The following morning, there was a slight drizzle, the plaintiff, who was 19 years old at the time, was herding cattle. He was wearing a raincoat. The plaintiff came into contact with a 100 volt electric conductor thereby “precipitating a short-circuit fault to earth” and was electrocuted. He suffered extensive burns as the electric current surged through his body, discharging into the ground. The plaintiff was taken to Mpilo Central Hospital in Bulawayo where he was hospitalized for three months. His left hand was amputated.

The plaintiff issued summons against the defendant, a power distribution company, claiming damages for the injuries sustained as a result of the electrocution. The amount claimed is broken down as follows:

(a) $60,000 for pain and suffering.

(b) $160,000 for permanent disfigurement and loss of amenities.

(c) $30,000 for future medical expenses.

This third claim was however abandoned before the commencement of the trial....,.

The plaintiff stated that he was claiming the sum of US$60,000 for pain and suffering because he endured a lot of pain when his hand was being amputated and also for the wounds on his back, leg, head and right ear. The plaintiff stated that he suffered a great deal of pain as the electric current surged through his body. The plaintiff further claimed the sum of $160,000 for permanent disfigurement because the electrocution changed his whole life....,.

The plaintiff indicated that he was now limited in the things he could do as a result of the amputation of his left hand. The plaintiff claimed a further sum of US$30,000 in respect of future medical expenses. The plaintiff did indicate the burn wounds he sustained to the court, and the court observed that indeed his left arm had been amputated from shoulder level....,.

In view of the finding that I have made on the liability of the defendant, it is not necessary to make a specific finding on the issue of 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 in the event that this decision is appealed against.

It is my finding that the quantum of damages claimed by the plaintiff is way above the range of damages usually awarded by this court in cases of electrocution resulting in amputation.

In Chinembiri & Ors v Ncube HH55-14, a case in which the defendant was being sued for damages, the six plaintiffs in that matter were awarded damages in the following ranges;

(a) $4,000 - $6,000 for pain and suffering.

(b) $2,000 - $10,000 for permanent disfigurement and loss of amenities.

The plaintiff did not adduce any evidence from any expert on future medical expenses. There is no basis on which the court would be able to award such damages in the absence of any credible evidence as to the nature of future treatment envisaged.

As a whole, the plaintiff's claims were somewhat exaggerated and the figures were certainly plucked from the air.

HH40-13 : TREVOR SIMBANEGAVI vs OFFICER JACHI
Ruled By: MAKONI J

On 8 December 2010, at around 1700 hours, and in Avonlea Drive, the plaintiff was approached by the defendant who was in the company of other officers of the Criminal Investigation Department. The defendant ordered the plaintiff to disembark from the motor vehicle where he was sitting. He ordered the plaintiff to lie on the ground on his back.

The defendant accused the plaintiff of having stolen the motor vehicle he was in. The plaintiff protested his innocence. The defendant, who was standing directly above the plaintiff, fired several shots aimed at the plaintiff's legs. He proceeded to handcuff the complainant and drove around with him for several hours before dropping him off at Harare Hospital. He did not remove the handcuffs. The defendant did not take the plaintiff to any police station for charges to be laid against him.

A total of six bullets were fired into the plaintiff's legs. As a result, he sustained numerous injuries from which he;

(a) Endured and still experiences excruciating pain;

(b) Had to have four steel plates surgically inserted in his right leg;

(c) Had to have an above the knee amputation of his left leg;

(d) Suffered contumelia as he was subjected to cruel, inhuman and degrading treatment.

The plaintiff incurred medical expenses in relation to the knee amputation, insertion of steel plates to reinforce the injured leg, analgesics, and other medical procedures.

Due to the nature of the injuries and associated complications, the disability percentage was assessed at 63%.

The plaintiff then instituted action proceedings against the defendant claiming:-

(a) $50,000 being damages for shock, pain and suffering;

(b) $100,000 being damages for loss of amenities of life;

(c) $50,000 being damages for contumelia;

(d) $11,367 being special damages for medical expenses;

(e) Interest on the total sum of $211,367 at the prescribed rate for the date of summons to date of trial payment;

(f) Costs of suit.

The defendant was served with the summons and did not enter appearance to defend. The matter was set down on the unopposed roll for the plaintiff to establish his claim.

In his affidavit of evidence, the plaintiff detailed how he was shot, the injuries he sustained, some of the procedures he underwent, and the medical expenses he incurred in respect of the procedures.

He then concluded in affidavit with a statement that he is entitled to the damages in the summons and declaration as the shooting was unjustified and unprovoked.

He did not give evidence at all to establish a basis for awarding him damages for contumelia and loss of amenities of life. Some attempt was made, in the Heads of Argument, to establish how the plaintiff suffered damages for the contumelia and loss amenities.

The case of Matthew Mbundire v Tryone Sim Buttress SC13-11 is very instructive.

GARWE JA considered the approach that has been followed by the courts in the assessment of damages in general and special damages in particular. He looked at a number of authorities, and, I will quote in extenso from p4 of the judgment:-

“In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:

'…,. 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. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance. But, where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it…,.

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176 H, 187C-D, BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C) 655-656F that:

'Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.'…,.

There must of course be sufficient evidence before the court for it to be in a position to make a proper assessment of damages, for '…, it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis for an assessment; and, it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made': Per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C) at 118E. See also Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 630.

Thus, where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance….,.'

In The Quantum of Damages in Bodily and Fatal Injury cases, 3ed, by CORBERT, BUCHANAN & GAUNTLETT, the learned authors state as follows at p99:

'In the case of damages which are capable of exact mathematical computation, such as for example medical and hospital expenses, proper evidence establishing the loss and substantiating the precise amount of the claim must be tendered.

Where, on the other hand, mathematical proof of the damages suffered is in the nature of things impossible, then, provided that there is evidence that pecuniary damage in this regard has been suffered, the court must estimate the amount of the damages as best as it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.

However, the application of this principle is dependent upon the plaintiff having adduced the best evidence available to him. Where he has not done so, and the difficulties in assessing the quantum of damages are due to the manner in which he has conducted his case, then the court is justified in ordering, and does order, absolution from the instance.'”

What is coming out of the above authorities, as quoted by GARWE JA in Matthew Mbundire v Tryone Sim Buttress SC13-11, is that a plaintiff must provide a factual basis, in evidence, that he suffered pecuniary damage. Once that is established, the court can then estimate the amount of damages as best as it can on the evidence available. When he has not done so, the court is justified in ordering absolution from the instance.

This is the situation that the plaintiff finds himself in casu.

Evidence is led through the plaintiff either viva voce or through an affidavit. It cannot be canvassed in the Heads of Argument.

In the result, the defendant must be absolved from the instance regarding the claims of contumelia and loss of amenities.

Special Damages

These are damages that have already been incurred and can be precisely calculated at the date of trial.

Under this head, the plaintiff has managed to establish that he incurred medical expenses to the tune of $11,367.

I would, however, comment that a plaintiff must, in his or her affidavit of evidence clearly tabulate his/her medical expenses.

In casu, the plaintiff simply referred the court to the annexures, which are the receipts he received upon payment. He then expected the court to add up the invoices to come up with the total figure claimed. The tabulation was then done in the Heads of Argument.

As already stated, a litigant does not lead evidence in the Heads of Argument.

Shock, Pain and Suffering

Assessment of damages in personal injury cases is one of the most daunting tasks that can confront a judicial officer.

GUBBAY JA…, summed it up in Minister of Defence and Anor v Jackson 1990 (2) ZLR 708 (SC) when he stated:-

“It must be recognized that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured.

The task, therefore, of assessing damages for personal injury is one of the most perplexing a court has to decide.”

Again, unfortunately, I do not have much to go by in assessing the damages for pain and suffering. The plaintiff must have been admitted into hospital at one point judging by the receipts attached as annexures. One cannot make out for how long he was hospitalised.

The plaintiff states that he suffered numerous injuries but does not give details.

All he says is that as a result of the injuries he had to have an above the knee amputation of the left leg and four steel plates inserted in his right leg. He endured and still experiences excruciating pain. He was taken to hospital several hours after the shooting.

There is no doubt that the plaintiff suffered severe injuries and he underwent much pain and suffering. He had to undergo various operation procedures.

In coming up with an award, it is my view that I must take into account that the plaintiff can still proceed to claim damages for loss of amenities. I take guidance from Minister of Defence and Anor v Jackson 1990 (2) ZLR 708 (SC) where the claims for pain and suffering, loss of amenities, and disfigurement were considered under one head.

I will therefore award the plaintiff the sum of $10,000 for shock, pain and suffering.

I will therefore make the following order:-

(1) The defendant is ordered to pay the plaintiff the sum of:-

(a) $11,367 being special damages.

(b) $10,000 being general damages for pain and suffering.

(c) The defendant to pay interest on the above amounts at the prescribed rate from date of summons to date of payment in full.

(d) The defendant is absolved from the instance in respect of the claims for contumelia and loss of amenities.

(e) The defendant to pay the plaintiff's costs of suit.

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

At the conclusion of the trial, I directed that the parties file closing submissions by close of business on 31 October 2008. The plaintiff filed his submissions timeously. Despite numerous reminders to the defendant's counsel, the defendant did not file his submissions. I have therefore proceeded to prepare my judgment ...

At the conclusion of the trial, I directed that the parties file closing submissions by close of business on 31 October 2008.

The plaintiff filed his submissions timeously. Despite numerous reminders to the defendant's counsel, the defendant did not file his submissions.

I have therefore proceeded to prepare my judgment without the benefit of his submissions.

Background

The following is the background to the matter:

The plaintiff issued summons on 10 July 2007. The summons were amended on two occasions. The last amendment was by consent at the commencement of the trial. The plaintiff was claiming damages in the sum of:

(a) $1 billion for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life and shortened life expectancy;

(b) US$8,000 for pecuniary loss of a motor vehicle, a Nissan Sunny, and interest thereon at the prescribed rate from the date of summons to the date of payment;

(c) $1 billion and US$5,000 in respect of estimated future medical expenses and interest thereon at the prescribed rate from the date of summons to the date of payment;

(d) $700,576,793=45 and US$4,104 in respect of medical expenses incurred by the plaintiff and interest thereon at the prescribed rate from 6 May 2008.

(e) $10 trillion (old currency) being travelling expenses to and from physiotherapy sessions.

The claim arose from the accident which happened at the intersection of Breach Road and Kingsmead Road, Borrowdale, Harare on 23 July 2006. Both parties were driving. The plaintiff was severely injured.

The plaintiff attributed the cause of the accident to the sole negligence of the defendant which the defendant in turn totally denied.

The plaintiff alleged that the defendant drove at an excessive speed, a vehicle with faulty brakes, and without his lights on. He failed to give way at an intersection controlled by a Give Way sign and failed to stop or act reasonably when an accident seemed imminent.

On the other hand, the defendant attributed the accident to a sudden brake failure.

Issues for determination

Two issues were referred to trial:

(i) The first issue is whether or not the cause of accident was a sudden brake failure.

(ii) If the court were to find that it was not, the second issue is whether or not the plaintiff is entitled to the quantum of damages claimed.

As the defendant had pleaded that the accident was as a result of a sudden brake failure, there was a presumption of negligence.

Although the burden of proving negligence remains with the plaintiff, the defendant was expected to give an explanation which negatives the probability of negligence on his part.

As stated in South African Motor Law, COOPER and BAMFORD, 1st Edition…,:

“In many cases where a mechanical defect is advanced as a defence, the circumstances of the collision raise an inference of negligence, res ipsa loquitur, which calls for an explanation from the defendant.”

The defendant, in addition to showing that the collision resulted from a mechanical defect in his vehicle, was required to show that the defect in question was unknown to him and that through the exercise of reasonable care the defect would not have been discovered: see South African Motor Law, COOPER and BAMFORD, 1st Edition…,.

Defendant's case

Defendant's evidence

The defendant testified first. The following is his evidence:

Prior to the accident he was at home. He lived in the vicinity of the scene of the accident. At about 2210hours, he got into his vehicle to go and drop off his cousin, Dexter, near Sam Levy Village, Borrowdale. He was accompanied by his friend Michael Snape.

The vehicle had been purchased for him two years before the accident for his 16th birthday. He however only got it a year later. He had used it for eight months and it was sent to Fasfit for service. The service included a new gear box, panel beating, and re-spraying. He had used the vehicle for ten days before the accident and had not noticed any problems with the brakes. The person who had repaired the vehicle had relocated to Australia and he could not get a report of the repairs that had been effected on the vehicle during servicing.

There were a lot of potholes on the road, and, as a result, he was driving slowly at a speed of 70km/h. He was driving along Kingsmead Road. The street was not lit; therefore, as he proceeded towards the intersection with Breach Road he put the gear into neutral and started freewheeling when he was between 125 and 150m from the intersection. He was travelling at about 65km/hr.

As he saw the intersection, he knew that he was obliged to give way.

He was about 60 to 50 meters from the intersection when he applied his brakes. He then realized that he was not slowing down. He stamped on the brakes. He thought there might be a leak of the brake fluid. He therefore pumped the brakes in the hope that they would work. The car did not slow down.

He saw the plaintiff's vehicle also entering the intersection. They entered the intersection at the same time. He could not stop as his brakes were no longer working. He then collided with the plaintiff.

Following the impact, the plaintiff's vehicle did a 180 degree spin. His vehicle hit a lamp pole which was 12 to 15 meters from the intersection and faced where he was coming from. His headlights were on. He explained that his vehicle has what are called flat lights. These are lights that fold in when the engine stops running. When the engine is on, the lights open up. The defendant testified that his lights were still facing up after the accident. Both the plaintiff's vehicle and his were extensively damaged.

He testified that he paid a fine for driving a vehicle without brakes. This was at the instance of his aunt and father. However, under cross examination, he testified that he did not have a clear mind at the time when he paid the fine.

I found the defendant did not fare well both in his evidence-in chief and under cross-examination.

He contradicted himself in material respects. He testified in his evidence that he knew that the intersection was controlled by a Give Way sign against him and he was obliged to give way. He said:

“I tried to put on brakes and I saw that they were not working about 50 to 60m before the intersection. I knew that a state of emergency had occurred as I had an obligation to give right of way….,.

As I came closer to the intersection, at about 150m, I took my car out of gear and free-wheeled towards the give way as I could not identify where the intersection was. 60m from the Give Way, I started applying brakes. I noticed that they were not working.”

After a lunch break, the defendant came back with a changed story.

He testified that the plaintiff is the one who was supposed to have given him way.

However, under cross examination, he reverted to the original testimony that he knew that there was a Give Way sign. When he was asked, under cross-examination, whether or not he was familiar with the road signs at the intersection, he stated that:

“I knew that there was a Give Way, but, there were no road markings and the road sign was across the road.”

It is clear from the evidence that the new story, after the lunch break, was a fabrication intended to evade the truth and mislead the court. It is my view that the defendant was therefore not a credible witness.

Michael Mukombami's evidence

The defendant called two witnesses. The first witness was Michael Mukombami.

At the time of hearing, he was the Acting Senior Vehicle Inspector. He had been in the employment of the Vehicle Inspection Department for 13 years since 1985. One of his duties was to examine vehicles involved in road accidents.

He examined the defendant's vehicle following the accident and issued the notice prohibiting use of vehicle in the plaintiff's bundle of documents marked as Exhibit G.

He examined all the systems and the body of the defendant's vehicle to assess the damage and the cause of the accident. It was his finding that the front of the car was extensively damaged. He could not state whether or not the lights were on prior to the accident because of the extent of the damage and because the headlights were crushed.

He found that there was no brake fluid in the master cylinder. The right front brake hose had separated leading to fluid leaking. He concluded that the hose separated as a result of the impact of the accident. This conclusion was based on the fact that the hose was still wet from the leaking oil.

The inspector disputed the assertion, by the defendant, that the brakes had failed before the accident.

He testified, under cross-examination, that the nature of the damage to the defendant's vehicle showed that the vehicle had been travelling at a very high speed.

The witness gave his evidence well. The plaintiff's counsel did not need to cross examine the witness to great lengths. He was an independent and credible witness who corroborated the plaintiff's case…,.

I preferred his evidence to that of the defendant.

I am guided by the decision in Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) where it was held that expert evidence can be preferred where the direct evidence of eye witness of a collision is not credible.

Michael Snape's evidence

The second witness was Michael Snape. He was seated in the front passenger seat when the accident occurred.

He was talking to Dexter who was seated at the back. He had not been paying attention to what was happening in front as he was leaning over talking to Dexter. He however, at one stage, noticed that the defendant was “stressing and was stamping his foot.” It was apparent to him that the brakes had failed. By the time he turned his head from Dexter, who was seated in the back, the accident had already happened.

He assumed that the vehicle was in neutral because it was not accelerating. He could not confirm if the defendant was indeed in neutral.

He confirmed, under cross examination, that he could not conclusively say that the brakes failed.

This witness's evidence was full of assumptions.

He had not been paying attention to the defendant's manner of driving as his attention was directed at Dexter who was seated in the back. He could not conclusively state that the brakes had failed.

He testified that he noticed that the defendant was having problems with his brakes when they were 200m from the intersection. The defendant put it at 60m. It was not clear how he would have estimated the distance when he was concentrating on Dexter.

Not much credence can therefore be given to most of his evidence.

However, he was conclusive that the plaintiff was already in the intersection when the accident occurred. This contradicted the defendant's evidence that the parties entered the intersection at the same time.

Plaintiff's case

The plaintiff's version of the accident was as follows:

He testified that he had lived in the neighbourhood of the scene of accident for 12 years. He was familiar with the intersection where the accident occurred. He had been travelling along Breach Road in an easterly direction. The road had not been repaired for over five years and was full of potholes. He was therefore driving slowly.

When he got into the intersection with Kingsmead Road, he was suddenly hit on the right driver's side by the defendant's vehicle. The defendant had been driving along Kingsmead in a northerly direction. The impact caused the front wheels of his vehicle to get off the ground. His vehicle rolled twice. He was thrown out of the window. He hit against a durawall. His vehicle hit a ZESA pole some distance away and across Kingsmead Road.

The accident happened so suddenly that he could not react.

The defendant did not have his lights on otherwise he would have noticed him and taken corrective measures. There was a Give Way sign against the defendant.

It was his evidence that the defendant must have been moving very fast to cause his vehicle to roll over as it did and for him to be thrown out of the vehicle. He testified that even if the defendant's vehicle had working brakes, he could still not have stopped the vehicle from hitting into him because of the high speed he was traveling at.

The plaintiff sustained severe injuries.

He was taken to Parirenyatwa Hospital. He was in a coma for a week. Thereafter, he was in the High Dependency Unit for another seventeen days. He spent seven and a half months in St Giles Rehabilitation Centre. The total period of hospitalization was about one and a half years.

He was placed under Professor Kalangu's care. He produced a report by the Professor on the extent of his injuries. The following is the full text of the report by the Professor dated 12 November 2007:

“This is to certify that the above named is under my care since 24-07-06. Patient was apparently involved in a Road Traffic Accident on 06/05/2006 in which he sustained complete paralysis of the left and complete paralysis both lower limbs. This motor impairment to upper limb due to major destruction of the brachial plexus (brachial plexus is a structure made by the nerves which supplies power and sensation to the upper limb) and by compression of the spinal cord for the lower limbs. Patient's conscious level was normal (15/15). Radiological investigations revealed: fracture of the left clavicle, fracture of the spine in C5 and C6 and MRI revealed a dislocation of the vertebra in C5-6 associated to spinal cord compression.

Patient was taken to the operating theatre on 29/07/2006 and spinal cord decompression + fusion were carried out. Post operatively, patient made slow but significant recovery.

Currently, he still has weakness of the forearm and arm on the left side. Moreover, patient suffers now from pain which we call, in neurosurgery, phantom pain and is typical of this type of lesion.

This patient will, unfortunately, have pain for a long time and another operation for this purpose is not excluded. In the meantime, patient requires a lot of physiotherapy. Mr. Mbundire is walking now on his own.

His percentage of disability is 60%.

If you require any further information please do not hesitate to contact me.

Yours truly,

Prof. K. K. N. KALANGU
Neurosurgeon.”

(The plaintiff produced a report dated 20 June 2008 whose contents are identical to the above except that it was signed by someone else on behalf of the Professor).

The plaintiff produced another report by Professor Mielke, of the Clinical Neurophysiology Laboratory, Parirenyatwa Hospital, Harare, dated 11 December 2006. The report reads:

“Clinically, he has weakness of all the muscle groups in the left arm, with no movement in shoulder and elbow muscles.

There is no sensory loss.

EMG today shows active denervation as low at T1, which is much more consistent with a brachial plexus lesion than a spinal injury: the upper plexus is seriously injured with no sign of recovery at present, but, the lower plexus should show good improvement.

I would recommend repeat studies in six months.”

Before the accident, he was in charge of sport and discipline at St Johns College, Borrowdale. He used to jog a lot. He used to referee rugby matches. He was responsible for rugby, swimming, hockey and athletics, and, all these activities required that he be fit at all times. He could play social soccer, rugby, and cricket.

He cannot participate in all these activities anymore.

Of particular concern was the adverse effect of his injuries on his relationship with his daughter who does not understand why her father can no longer do the activities he used to do before the accident....,.

QUANTUM OF DAMAGES

There is no denying that the accident was a major tragedy for the plaintiff and his family which was also costly for them....,.

General damages

It was not seriously disputed that the plaintiff will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

He has a weakness of the forearm and arm on the left side and suffers from pain for a very long time. The upper plexus is seriously injured with no sign of recovery at the time the plaintiff was examined.

The term “plexus” is defined in Butterworths Medical Dictionary to mean an interwoven network of nerves or blood vessels.

His disability is estimated at 60%.

The plaintiff was a sportsperson. This was confirmed by the defendant. Therefore, the injuries from the accident have resulted in a greatly reduced quality of life. The injuries have affected his relationship with his daughter which was previously very close.

The plaintiff claimed the sum of $1 billion dollars for the pain and suffering, disfigurement, loss of amenities of life, and short life expectancy.

The plaintiff would ordinarily be entitled to the damages had his disability been final and stationary at 60%.

It should be noted that, except for the dates and the signatures, the two reports from Professor Kalangu, dated 12 November 2007 and 20 June 2008 are identical. This is despite the fact that a period of seven months had lapsed after the first report.

One would have expected the later report to have indicated any changes that may have occurred during that period. It appears that whoever signed on the later report merely printed the report of 12 November 2007.

The report by Professor Mielke, dated 11 December 2006, stated that the “lower plexus should show good improvement.” It is not clear to what extent the improvement will affect the rate of disability as assessed by Professor Kalangu.

The report further states that there should be a repeat study in six months time from 23 July 2006. The plaintiff did not advise the court whether or not he had gone for the repeat study, and, if so, the results thereof.

However, the impression given by both Professors Kalangu and Mielke is that the plaintiff may improve with rehabilitation and treatment. The disability is therefore debatable.

The debate could have been resolved had the plaintiff led evidence from any of the two doctors.

In the case of Ebrahim v Pittman NO 1995 (1) ZLR 176 (H)…, BARTLETT J commented on the approach in assessing damages and…, said:-

“It is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or inadequate factual basis for an assessment, and it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of loss could have been made.”

It is my view that the plaintiff has not placed before the court adequate evidence to enable it to assess the degree of disability and hence the general damages that the plaintiff is likely to suffer.

In the result the defendant should be absolved from the instance.

Past Expenses

The plaintiff claimed the medical and allied expenses that he incurred. These included the shortfall from CIMAS in relation to his hospitalization, physiotherapy, and fees for nursing aides. The claim amounted to a total of $704,576,798=45.

The defendant queried a number of duplications that appeared on the statement from CIMAS.

The following claims were alleged to have been duplicated:

CLAIM No. DATE OF TREATMENT SHORTFALL $

(a) 0014751577 27/07/06 60,282.60

(b) 0014271878 23/07/06 56,126.70

(d) 0028277109 09/01/07 11,000.00

(e) 0028277154 11/01/07 11,000.00

(f) 28277154 17/01/07 2,292.00

(g) 0028277131 09/01/07 11,000.00

(h) 28277131 10/01/2007 2,292.00

From an analysis of the statement, it is clear that only the first four were duplicated. The last four were not. The claim numbers are different. A removal of the first two zeros in (e) and (g) would give one the same numbers in (f) and (h) respectively. However, the dates for treatment are different. The shortfall being claimed is also different.

The plaintiff properly conceded, in the closing submissions, that there are some duplications.

The disputed amount is $146,892=50. It is my view that the amount should be deducted from the total being claimed.

The plaintiff is therefore entitled to judgment in the sum of $704,429,905=95.

The plaintiff further claimed an amount of US$4,104 as past expenses. That amount consists of payment in the sum of US$1,187 to Professor Chinyange on 28 May 2008. US$2,802 was paid to Professor Kalangu on the same date. A total of US$115 was paid to one Jacquie Simpson Bowen for rehabilitation therapy for the period between 22 June 2007 and 29 May 2008.

The defendant sought to challenge this claim on the basis that the fees were illegal in that the medical practitioners did not have the foreign exchange authority to levy fees in foreign currency.

However, the facts still stands that the plaintiff suffered loss in foreign currency.

There is authority to the effect that a court can grant a judgment in a foreign currency even where the claim arises in delict: see Makwindi Oil Procurement (Pvt) Ltd v National Oil Co. of Zimbabwe 1988 (2) ZLR 482 (SC) and Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747…,.

The plaintiff suffered the loss in foreign currency as a result of the defendant's negligence. It is my view that the plaintiff has laid a basis for payment in foreign currency and it is only proper that the plaintiff be compensated in the same currency.

Future Medical Expenses and Transport Costs

The claim for future expenses was $1 billion and US$5,000. The expenses are for physiotherapy which the plaintiff has to attend once a week and for drugs that he is required to take. The plaintiff also claimed transportation expenses in the sum of $10 trillion dollars in respect of the physiotherapy sessions.

The expenses must be proved to the satisfaction of the court.

The plaintiff relied on a quotation from Helensvale Pharmacy to prove that he will be required to spend at least US$55 per month for medication for the pain and to help him sleep. He also appears to have relied on the report from Jacquie Simpson that he still requires rehabilitation therapy at the rate of US$5 per session.

It is not in issue that the plaintiff will require transport to attend physiotherapy and rehabilitation. However, the plaintiff did not indicate how he arrived at the amounts claimed. It is not clear how many sessions he will be required to undertake.

It should be noted that the report from Professor Mielke, however, does not detract from the fact the plaintiff will require future attention, and, therefore, incur expenses. The documents that he has produced give a fair idea of the expenses that the plaintiff is likely to incur.

It is my view, again, that the plaintiff has not placed before the court adequate evidence to enable it to assess the future expenses that he is likely to suffer.

In the result, the defendant, again, should be absolved from the instance....,.

In the closing submissions, the plaintiff conceded that the claim of $704,576,798=45 is now academic as it is meaningless in real terms.

He conceded that an award would be for no practical consequences as far as its purpose to compensate the plaintiff is concerned.

Following the removal of zeros by the Reserve Bank of Zimbabwe between the date of amendment of the summons and date of judgment, the amount is indeed insignificant and serves no purpose in compensating the plaintiff.

Whilst acknowledging that the claim for damages denominated in the local currency is academic, the plaintiff submitted that it is entitled to the order in principle.

The plaintiff's wish is my command.

In the result, it is ordered that:-

1. The defendant be and is hereby ordered to pay the sum of -

(a) $704,429,905=95 being past medical expenses and interest on that amount at the prescribed rate from 6 May 2008 to the date of payment.

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo ...

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.

The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo be set aside and substituted with an order dismissing the special plea with costs.

Background

This protracted and bitterly contested matter emanates from the following factual background:

The appellant was employed by the second respondent, reporting to the first respondent, who was the Chief Executive Officer of the second respondent. On 18 June 2014, the appellant issued summons against the respondents claiming damages for shock, pain and suffering, arising from alleged sexual harassment by the first respondent between September 2002 and June 2003.

According to the appellant, her resistance to the first respondent's unsolicited and predatory advances culminated in her dismissal from the second respondent's employment. Her dismissal was challenged and referred to arbitration. The arbitrator found in her favour after finding that she had been sexually harassed by the first respondent.

The arbitrator initially ordered both respondents to jointly compensate the appellant, but, in subsequent proceedings, he referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment.

Before the High Court, the respondents filed a special plea that the claim had prescribed by the time that summons were issued in June 2014.

The second respondent also excepted to the declaration on the basis that it did not disclose a cause of action by reason of the appellant's failure to specifically and properly allege vicarious liability on its part in respect of the first respondent's conduct.

The court a quo found that, by the end of 2003, the appellant was aware of every fact necessary to prove her claim for damages. However, instead of approaching the High Court for damages, she pursued her claim through the labour relations mechanisms of conciliation and arbitration. The arbitrator had no jurisdiction to assess damages arising from an unfair labour practice, and, therefore, could not award damages for sexual harassment. The claim for such damages was not part of the arbitrator's terms of reference and was not properly before the arbitrator.

In the circumstances, the court held that the setting in of prescription was not delayed, in terms of section 17(1)(d) of the Prescription Act, by the purported submission of the claim to the arbitrator. The claim for damages was raised before a competent court well after it had prescribed.

In the event, the court upheld the respondents' special plea of prescription and dismissed the appellant's claim with costs.

Submissions on Appeal

The appellant's position, as appears from her grounds of appeal and voluminous heads of argument, is that the question of sexual harassment was a labour matter to be first determined and disposed of by the arbitrator before any claim for delictual damages could be lodged at the High Court.

She further submits that the issues of sexual harassment and vicarious liability were part of the arbitrator's terms of reference.

Moreover, the arbitrator's finding of sexual harassment was not appealed against and remained unchallenged.

Thus, she contends that the question of damages, having been properly raised before the arbitrator, was not raised for the first time before a competent court well after her claim had prescribed.

Counsel for the first respondent submits, that, there is a fundamental distinction between a claim for compensation in a labour dispute and a claim for damages under the lex Aquilia. Therefore, since there was a different cause of action before the arbitrator as compared with that before the High Court, the reference to arbitration did not operate to interrupt the running of prescription on the claim for damages.

Counsel for the second respondent echoes the same position, but from a slightly different angle.

He submits that the appellant's claim of sexual harassment created two distinct rights:

(i) One was an exclusively labour matter;

(ii) While the other was purely for civil damages.

Consequently, the appellant's claims before the arbitrator did not have the effect of suspending the running of prescription as against the appellant's claim in the High Court.

However, he accepted that the rationale behind section 17(1)(d) of the Prescription Act was the need to avoid the multiplicity of litigation in respect of the same cause of action.

In casu, there are two critical factors that are not in dispute:

(i) Firstly, one of the questions referred to the arbitrator for determination was “whether or not sexual harassment was perpetrated on R.M. Mbatha by F.B. Zizhou in his capacity as Confederation of Zimbabwe Industries Chief Executive Officer.”

(ii) Secondly, in March 2014, the arbitrator found that the appellant had been sexually harassed and ordered the respondents to compensate her for the damages she had suffered.

However, as I have already indicated, the arbitrator subsequently referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment, as that was a matter that fell outside his jurisdictional remit.

In any event, the arbitrator's finding, that the appellant had been sexually harassed, remains extant. It has not been appealed against or otherwise challenged.

Whether Prescription Interrupted by Arbitration Proceedings

In light of the exchanges between the Court and the parties at the hearing of the appeal, the principal issue for determination in casu is the meaning to be ascribed to section 17(1)(d) of the Prescription Act [Chapter 8:11].

Section 17 of the Prescription Act enumerates the various circumstances in which the completion of prescription is delayed. Section 17(1)(d), which is specifically relevant in casu, provides as follows:

“(1) If -

…,.

(d) The debt is the subject matter of a dispute submitted to arbitration, or is the subject matter of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of a debtor or against a company in liquidation or against an applicant under the Agricultural Assistance Scheme set out in the Third Schedule to the Agricultural Finance Corporation Act [Chapter 18:02]; or…, and the period of prescription would, but for this subsection, be completed before or on, or within one year after, the date on which the relevant impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of one year which follows that date.”

As a matter of interpretive principle, in the context of statutory provisions, it is trite that the courts lean towards an interpretation that gives full effect to the purpose for which the provision under consideration was enacted.

In my view, a broad and generous interpretation of section 17(1)(d) of the Prescription Act would give effect to the twofold purpose for which it was enacted:

(i) The foremost rationale of the provision is to avoid the situation where the same dispute is submitted for adjudication before multiple fora.

(ii) The second objective is to ensure that litigants whose disputes are submitted to arbitration are not prejudiced by being precluded from instituting proceedings before the courts, should it become necessary to do so, in respect of the same matters.

On this broad and purposive approach, where a matter is submitted to arbitration, the running of prescription would be arrested notwithstanding that a different remedy is later sought, provided that remedy arises from the same cause of action. To hold otherwise would, in my view, operate to erode the purpose for which section 17(1)(d) of the Prescription Act was created.

While I accept that a cause of action is conceptually distinct from the overlying debt that is claimed, the latter cannot exist in vacuo and must be predicated on the underlying cause of action.

In the instant case, the debt, being the claim for damages for sexual harassment, cannot be severed or divorced from the cause of action, which is the sexual harassment itself.

The question that was submitted to the arbitrator for determination was whether or not sexual harassment was perpetrated on the appellant. This is the same cause of action from which the appellant's claim for damages emanates.

On this basis, it must be accepted, that, the debt claimed by the appellant, being the damages for sexual harassment, constitutes the subject matter of the dispute that was submitted to arbitration.

It then follows that the running of prescription on the claim for damages was interrupted in accordance with the provisions of section 17(1)(d) of the Prescription Act.

The same conclusion is arrived at if one has regard to the broad definition of the term “debt” in section 2 of the Prescription Act [Chapter 8:11], viz:

“Without limiting the meaning of the term, [a debt] includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict, or otherwise.”

The debt sued for in the court a quo arose from the delict of sexual harassment, which delictual matter was also competently before the arbitrator.

The debt in casu comprises two separate but interrelated components, to wit, the delictual conduct perpetrated by the first respondent and the consequent claim for damages.

The arbitrator dealt with and determined the first component of the debt, which consequently gave rise to the claim for damages in the court a quo.

Thus, inasmuch as an essential component of the debt was before the arbitrator, the debt was the subject matter of the dispute submitted to arbitration, thereby interrupting the running of prescription on the claim for damages in the court a quo.

Potential Plea of Lis Alibi Pendens

I am fortified in the foregoing conclusion from a different practical perspective.

The argument that the appellant should have simultaneously, or conjunctively with the arbitration proceedings, pursued a separate suit for delictual damages in the High Court results in the untenable scenario where the arbitrator might possibly have made findings contradictory to those made by the High Court.

Quite apart from this potentially anomalous scenario, the principles governing the special plea of lis alibi pendens would have operated to impede the successful institution of a claim for delictual damages. This is because the claim would be premised on the same cause of action in a dispute between the same parties already pending before an arbitral tribunal.

The rationale behind the special plea of lis alibi pendens is akin to that underlying section 17(1)(d) of the Prescription Act, viz. the need to avoid potential duplication of litigation founded on the same cause of action.

This point was highlighted by the Appellate Division in Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571…, in interpreting the South African equivalent of section 17(1)(d) of the Prescription Act [Chapter 8:11]:

“The same duality of purpose can be seen, in my view, in section 13(1)(f) of the Act which is of direct relevance to the present case. The subsection applies 'if…, the debt is the object of a dispute subjected to arbitration.'

An arbitration agreement does not necessarily oust the jurisdiction of the court.

Despite the existence of such an agreement, the creditor may elect to institute legal proceedings, although he might be met by an application for stay of proceedings or a special plea to the same effect…,.

The court would, in practice, normally order a stay if requested to do so…,.

An arbitration agreement is therefore, in a sense, an impediment to the recovery of a debt by means of legal proceedings, but it is one, because it provides an alternative means of resolving disputes, which carries the approval of the law.

This applies a fortiori where a dispute has actually been subjected to arbitration.

The creditor is protected against the running of prescription because there exists an impediment to his approaching the ordinary courts, and the impediment exists because he is taking appropriate alternative steps to recover his debt. It is against this background that section 13(1)(f) of the Act should, in my view, be interpreted and applied.”

In casu, it would not have been practically possible for the appellant to institute proceedings for delictual damages in the High Court when another competent tribunal was already seized with an unfair labour practice arising out of the same cause of action.

This is so because the respondents would undoubtedly have pleaded lis alibi pendens and succeeded in that plea, thereby preventing the appellant from prosecuting her claim for damages.

Disposition

It follows from all of the foregoing that the appeal must succeed on the basis that the running of prescription against the appellant's claim for damages was interrupted by the submission to arbitration of her claim of sexual harassment by the respondents.

Thus, the prescriptive period would only have expired, in terms of section 17(1)(d) of the Prescription Act [Chapter 8:11], one year after the date of the award rendered in her favour.

Consequently, the appellant's claim for damages for sexual harassment, having been lodged in June 2014, within three months of the award rendered in March 2014, must be regarded as having been timeously lodged in the High Court.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgement of the court a quo be and is hereby set aside and substituted with the following:

“(i) The defendants' special plea of prescription is dismissed with costs.

(ii) The defendants shall plead to the plaintiff's claim within ten days from the date of the judgement handed down by the Supreme Court in Case No. SC80/18 as Judgment No. SC69/2018.”

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

The application before me is a special plea and exception.

The brief facts surrounding this claim are as follows:

The plaintiff was employed by the Confederation of Zimbabwe Industries reporting to the first defendant who was its President and Chief Executive Officer. On 18 June 2014, the plaintiff issued summons against the two defendants claiming damages for shock, non-patrimonial damages, post traumatic damages and pain and suffering.

The plaintiff claims that during the course of her employment with the second defendant, which ran between September 2002 and June 2003, she was sexually harassed by the first defendant who would pester her for an improper relationship. She claims that her resistance to the sexual advances culminated in the termination of her employment by the first defendant for a petty offence.

She challenged the dismissal.

The matter ended up at arbitration. An arbitrator ruled in her favor after having found that she had been sexually harassed by the first defendant. The arbitrator ordered the defendants to jointly compensate her for the damages she had suffered as a result of the sexual harassment.

The defendants have filed a special plea and also except to the plaintiff's summons and declaration. They take two points:

(i) The first point both defendants take is that the plaintiff's claim has prescribed.

The defendants submitted that by the time summons was issued, on 18 June 2014, the plaintiff's claim had prescribed.

(ii) The second defendant challenges the summons on the basis that it does not disclose a cause of action against it. It avers that the second defendant's liability can only be vicarious.

The second defendant challenges the declaration on the basis that it does not allege that the actions against the plaintiff were committed “during the course and within the scope of his employment.”

The defendants contend that the omission is fatal to the plaintiff's claim....,.

The next issue is that of prescription.

I have chosen to deal with this point first as it is capable of disposing of the matter without the need to delve into the second point raised on the merits.

It is trite that a debt or cause of action prescribes after three (3) years in terms of section 15(a) of the Prescription Act [Chapter 8:11], as read with section 2.

The term 'cause of action' was succinctly defined in Chiwawa v Mutzuris and Ors HH07-09…, where the court stated as follows;

“It is now settled in our law, in my view, that the term refers to when the plaintiff is aware of every fact which it would be necessary for him or her to prove in order to support his or her prayer for judgment. It is the entire set of facts that the plaintiff has to allege in his or her declaration in order to disclose a cause of action but does not include the evidence that is necessary to support that cause of action.”

See also Shinga v General Accident Insurance Co. (Zimbabwe) Ltd 1989 (2) 268.

Prescription begins to run when a litigant becomes aware of all the facts that she requires to allege in her prayer for judgment.

There are instances when the setting in of prescription is delayed.

One such instance is provided for in section 17(1)(d) of the Prescription Act. The section provides that prescription is delayed “if the debt is the subject matter of a dispute submitted to arbitration…,.”

Section 17 of the Prescription Act covers a situation where a debt or cause of action has been submitted to arbitration. Section 17(1)(d) is applicable where the subject matter of a dispute is submitted to arbitration.

The rationale behind the section must have been to ensure that litigants who pursue the arbitration route do not get barred from bringing their claims to the formal court system should they wish to do so; that after the expiry of three years from the time the cause of action arose. The time that litigants take when attempting to get the dispute resolved by way arbitration is not counted for purposes of determining if the debt or cause of action has prescribed.

Prescription is, in those circumstances, delayed until the arbitration proceedings are either finalized or abandoned.

The cause of action, as outlined in the summons, is the sexual harassment that occurred during the time the plaintiff was employed by the second respondent. The plaintiff was employed by the second defendant between 2 September 2002 and 19 June 2003. The cause of action arose during that period.

Summons was only issued on 18 June 2014 - some 11 years after the plaintiff had left the second defendant's employment. The plaintiff was, by the end of June 2003, aware of every fact which was necessary for her to prove in order to support her claim for damages for sexual harassment.

Instead of approaching the High Court claiming damages for sexual harassment, she went for conciliation with a complaint of sexual harassment and claiming that an unfair labour practice had occurred and that she had been wrongly dismissed.

The matter ended up with an arbitrator who on 28 March 2014.

The terms of reference of the arbitrator did not include determination of the question of damages for sexual harassment. The questions referred by the conciliator were simply whether she had been sexually harassed and the issue concerning her dismissal. The arbitrator ruled that the plaintiff was sexually harassed by the first defendant and both defendants were ordered to jointly compensate the plaintiff for damages for sexual harassment.

The jurisdiction of arbitrators, when dealing with unfair labour practices, is limited to stopping the conduct complained against. The role of the Labour Court and arbitrators, when dealing with claims involving sexual harassment, is to make a finding on allegations of unfair labour practice and only seek to stop the practice.

The Labour Court or tribunal does not have jurisdiction to assess damages arising from a complaint of an unfair labour practice.

Similarly, a Labour Court or tribunal faced with a complaint of sexual harassment cannot proceed and make an award for damages arising out of the sexual harassment.

The claim for damages was never properly before the arbitrator.

The arbitrator erred in dealing with the issue regarding damages suffered as a result of the sexual harassment as damages were not part of the arbitrator's terms of reference. His terms of reference were clear that he was required to deal with the unfair labour practice only. He dealt with the claim for damages out of his own initiative and wrongly so. He went on a frolic of his own.

The award was subsequently set aside by this court on the basis that the arbitrator lacked jurisdiction to award civil damages.

The claim for damages was not properly before the arbitrator. If it was not properly so, then there was no submission and hence there is no delay to talk about. There, setting in of prescription was not delayed by the purported submission to arbitration because the claim for damages was improperly before the arbitrator.

Section 94 of the Prescription Act [Chapter 8:11] deals with prescription of labour disputes and hence has no relevance to this claim.

The issue of damages is being raised for the first time in a competent court well after the claim has prescribed.

By the time summons were issued, the claim had prescribed.

In the result, it is ordered as follows:

1. The defendant's special plea is upheld.

2. The plaintiff's claim is dismissed with costs.

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

IntroductionThe plaintiff claims a default judgment for sexual harassment. She is unrepresented.The matter appeared on the unopposed motion roll on 20 October 2021. It was one of several such appearances. In the past, the matter would be removed from the roll for one reason or other. The matter has had ...

Introduction

The plaintiff claims a default judgment for sexual harassment. She is unrepresented.

The matter appeared on the unopposed motion roll on 20 October 2021. It was one of several such appearances. In the past, the matter would be removed from the roll for one reason or other. The matter has had a long and turbulent history. The plaintiff says the wheels of justice have turned ever so slowly for her.

There can be no denying that.

She has been to this court. She has been to arbitration. She has been to the Supreme Court. She is back in this court. She strives for closure. Any lesser mortal would probably have given up. Plainly, the plaintiff is no lesser mortal. Her tenacity and fighting spirit have moved mountains. She is still fighting. This judgment only settles half the case. The other half still continues.

I shall explain.

Nature of Claim

The plaintiff has pleaded sexual harassment at the work place in 2002 to 2003. Then, she was employed by the second defendant. She alleges that sexual harassment of female employees at the second defendant's workplace was rampant. She says, as against herself, the first defendant was the sole culprit. He was the Chief Executive Officer. She was his personal assistant.

She says despite reporting him, the second defendant, through its President, was flippant, if not contemptuous.

Her claim is for USD500,000 [five hundred thousand United States dollars]. It is against both defendants.

Initially, they both defended vigorously. But, by and by, she barred the first defendant in default of a plea. That did not just happen. It was after sweat and blood. The details emerge later. But, having barred the first defendant she now seeks a default judgment as against him only.

As against the second defendant, the case continues. At the time of this judgment, it was poised for a pre-trial conference.

Details of the Claim

The sexual harassment was over some nine months. It started when she was still on probation. She got employed by the second defendant in September 2002. She got fired in July 2003. It was an unfair dismissal. The first defendant engineered it all. He schemed it. She had reported him for the sexual harassment. He took revenge. The charges were trumped up.

The sexual harassment took the following forms:

(i) Inappropriate touching;

(ii) Unwelcome offensive jokes;

(iii) Invitation, by innuendo, to an inappropriate sexual relationship;

(iv) Receiving offensive telephone messages;

(v) Receiving pornography on the computer;

(vi) An attempt to kiss by force, causing an injury on the thigh in the process of resisting.

On record, there are several electronic messages from the first defendant to her. One e-mail, in January 2003, at 12:16 hours, is worth reproducing. On it, a deliberately misleading subject caption was used, “Call from Mr Miller (Superior Holdings)”. The email goes:

“Rita,

I have used the above caption just in case. Please delete completely immediately after reading. Look at the time I am sending this note – just to show you I could not sleep before writing this note to you.

Rita, I love you very much and wish you could be mine.

When I am taking a bath with Clara I always pretend it's you; the torture is unbearable. It hurts me that when I touch your lovely hand you cringe and ask me to stop. Do I repulse you? I desperately need to kiss you.

Shamwari, if I do get dismissed, it will be because I would like to do whatever I can for the person I care for most - you.

Right now, I am under pressure to balance the budget of CZI. You have just completed your probation, and, according to CZI rules, you are not eligible for the general increase for permanent staff, but the small adjustment that is in your appointment letter. I am bending the rule – for you; please hold on tight to me – if we crash, we crash together.

I am awarding you the same percentage increase as everybody else. I am defending it against the treasurer this morning. Doing so will cost CZI an extra $3 million in employment and other costs for the three people involved. The others are lucky to be associated with you. This will wipe out the surplus we were going to make after selling the Land Rover. The treasurer had made his recommendations following the rule and I have asked Venek! ai to make the change before he comes for the final meeting this morning.

I feel guilty as it is no right to expropriate you from your husband, but, unfortunately…,. Please God help me on this one as it has been giving me sleepless nights.

You are the love of my love. I will do anything for you.”

The plaintiff says when she reported the sexual harassment to the then President of the second respondent, the response was ambivalent. When she tried to follow up she was told off. The President is said to have retorted, that, as a married woman, she should be ashamed to say that she had been sexually harassed. That hurt, she says.

Litigation

Having faced a brick wall, the plaintiff turned to the law. She brought the matter on arbitration. The arbitration went on for years. There were several sittings. She says the defendants were employing delaying tactics. They would seek postponements. They would offer to talk an out of court settlement but would renege. They would miss some sittings. They would not file documents timeously, or at all. But she persisted. Eventually, she got an award.

Among other things, the arbitral tribunal found that she had been unfairly dismissed. It also found that she had been sexually harassed.

That was in March 2014.

In June 2014, she instituted the present proceedings. The defendants were barred for late noting of an appearance to defend. They applied for condonation. When granted, they took a special plea in bar.

They alleged the plaintiff's claim had become prescribed. They calculated the period of prescription from 2002, when the sexual harassment occurred. As a result, they came up with eleven years. Prescription for an ordinary debt is three years. This court agreed with the defendants. Under judgment No. HH93-16, it dismissed the plaintiff's claim. It said the cause of action had arisen in 2002 to 2003 when the sexual harassment had occurred. It upheld the special plea of prescription.

The plaintiff appealed.

Under Judgment No. SC69-18, the Supreme Court disagreed with the defendants. It premised its judgment on section 17 of the Prescription Act [Chapter 8:11]. In terms of this provision, and in paraphrase, the period of prescription, in respect of, among other things, a debt which is the subject matter of proceedings on arbitration, is extended for one year from the end of those proceedings.

The Supreme Court allowed the plaintiff's appeal on the basis that her claim in this court had been instituted barely three months after the end of the arbitration, i.e. well before prescription had run the full course.

After allowing the appeal, the Supreme Court gave the defendants ten days to plead over to the merits of the plaintiff's claim. The first defendant missed the deadline. He applied for condonation a record four times: two in this court and the other two in the Supreme Court. He completely botched it. Eventually, condonation was firmly and finally refused by this court under Judgment No. HH592-20.

The first defendant was permanently barred.

The first defendant, having been barred in default of a plea, the plaintiff made attempts to set the matter down for a default judgment against him. Early attempts were unsuccessful for one reason or other. One of them, as depicted by a judgment of this court, under HH392-21, was that her causa for seeking a default judgment had been incorrect. She had sought a default judgment on the basis of a failure to file an appearance to defend timeously. Yet, the correct causa had been the failure to file a plea within the ten days prescribed by the Supreme Court.

Eventually, the plaintiff succeeded in setting the matter down on the unopposed motion roll.

In the company of the newly appointed judges, NDLOVU J, DEME J and KATIYO J, who were on induction, I granted the relief sought but reserved judgment on quantum.

Here now is the judgment on quantum.

Sexual harassment as an actionable wrong

The Labour Act [Chapter 28:01] provides for sexual harassment as an unfair labour practice by an employer or any other person. In terms of section 8(g) and (h), an employer commits an unfair labour practice if he, among other things:

(i) Demands from an employee, sexual favours as a condition of improving the remuneration or other conditions of employment of the employee;

(ii) Engages in unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials at the workplace.

This judgment is not concerned with whether or not an unfair labour practice was committed against the plaintiff. That enquiry was settled by the arbitration. It was confirmed by the Supreme Court.

At any rate, in the absence of a plea, that enquiry is not before the court.

The reference, in this judgment, to section 8 of the Labour Act, is, inter alia, for the purposes of showing that sexual harassment is an actionable wrong in terms of our labour laws.

So, the one question is: if it is an actionable wrong under the labour laws, is it also an actionable wrong in delict? Is sexual harassment covered under the lex Aquila; that old Roman law that provided for compensation for injury caused by someone's fault?

The other question is: if sexual harassment is covered under the lex Aquila, what would be the quantum of the damages? How are they assessed?

Sexual harassment as a species of non-patrimonial loss

Sexual harassment is an actionable wrong under the lex Aquila. For damages to be recoverable, the plaintiff must have suffered some recognisable injury. Such injury is not confined to physical damage. Mental damage is also included. Under an ordinary delictual wrong causing bodily injury there is already recognisable a claim for pain, shock, suffering and loss of the amenities of life.

Sexual harassment causes pain. It results in shock. It is a kind of injury to the victim's person. That injury can lead to loss. Such loss is non-patrimonial. Non-patrimonial loss is:

“…, the diminution, as the result of a damage-causing event, in the quality of the highly personal (or personality) interests of an individual in satisfying his or her legally recognized needs, but which does not affect his or her patrimony.”

VISSER & POTGIETER: Law of Damages, 3rd ed., Juta…,.

The above authors classify emotional shock as psychiatric injury…,.. Pain and suffering is part of the emotional shock. But, emotional shock can also lead to further recognisable psychiatric conditions such as insomnia, anxiety, neuroses, hysteria, depression, and the like.

Emotional shock of short duration is disregarded if it does not have any real impact on the health of the plaintiff. The loss of the amenities of life is also part of the non-pecuniary damage.

Loss of amenities refers to the loss of the ability or will to participate in the general or specific activities of life and to enjoy life as one did previously…,. Included in this kind of loss are adversities like sexual impotence, loss of marriage opportunities, loss of general health, change of personality, loss of intellectual function, the difficulty experienced in the exercise of one's profession, and so on.

The English case of White v Chief Constable of South Yorkshire 1999 (2) AC 455 recognised the right to claim damages for psychiatric injury but, of course, within certain limits. In the judgment by LORD STEYN is the following statement:

“Courts of law must act on the best medical insight of the day. Nowadays, courts accept that there is no rigid distinction between the body and mind. Courts accept that a recognizable psychiatric illness results from an impact on the central nervous system. In this sense, therefore, there is no qualitative difference between physical harm and psychiatric harm. Any psychiatric harm may be far debilitating than physical harm.”

I agree with those observations.

In South Africa, KHAMPEPE J, writing the unanimous decision of the Constitutional Court in McGregor v Public Health & Social Development Sectorial Bargaining Council & Ors CCT270-20 introduced the judgment as follows:…,.

“Sexual harassment is the most heinous misconduct that plagues a workplace.

Although prohibited under the labour laws of this country, it persists. Its persistence and prevalence 'pose a barrier to the achievement of substantive equality in the workplace and is inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality, and the advancement of human rights and freedoms…, and non-sexism'.

Not only is it demeaning to the victim, but it undermines their dignity, integrity, and self-worth, striking at the root of that person's being.”

I also agree.

Section 51 of our Constitution guarantees the right to human dignity. It says every person has inherent dignity in their private and public life, and the right to have that dignity respected.

It is axiomatic that sexual harassment, especially at the workplace, strips the victim of his or her dignity. It degrades her (most victims are female).

It turns her into an object of sexual gratification.

It strips her of her right to personal security as contemplated by section 52 and section 53 of the Constitution. Section 52 says every person has the right to bodily and psychological integrity, which includes, among others, the right to freedom from all forms of violence from public or private sources.

Section 53 guarantees the freedom from, among other things, inhuman or degrading treatment.

Therefore, a claim for damages for sexual harassment is an attempt to vindicate such of the constitutional and other rights as will have been frittered away by the defendant.

Assessment of damages for sexual harassment

To succeed in a claim for damages under the lex Aquila in general, the plaintiff must establish the following factors:

(i) That the defendant committed a wrongful act;

(ii) That the plaintiff suffered patrimonial loss, which is actual loss capable of pecuniary assessment;

(iii) That 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) That 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):

See Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H)…,.

The lex Aquila is extended to cover non-patrimonial loss.

Compensation is designed to help the plaintiff overcome, as far as money can, the effects of his or her injuries. The court takes account of the general principles as well as any other relevant peculiarity of the case before it. It has a wide discretion to award what, in the particular circumstances, should be fair, reasonable, and adequate.

In White v Chief Constable of South Yorkshire 1999 (2) AC 455, LORD STEYN said:

“In an ideal world, all those who have suffered as a result of the negligence ought to be compensated. But, we do not live in Utopia: we live in a practical world where the tort system imposes limits to the classes of claims that rank for consideration as well as to the heads of recoverable damages.

This results, of course, in imperfect justice but it is by and large the best that the common law can do.

The application of the requirement of reasonable foreseeability was sufficient for the disposal of the resulting claims for death and physical injury. But, the common law regards reasonable foreseeability as an inadequate tool for the disposal of claims in respect of emotional injury.”

In our jurisdiction, the general principles laid out in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC), in respect of pain and suffering, loss of amenities, and disfigurement should also apply to the assessment of damages for sexual harassment.

Our Supreme Court said translating personal injuries into money is equating the incommensurable. The assessment of damages is one of the most perplexing task a court has to discharge. The broad principles that have been sampled from the several authorities here and abroad are:

(i) General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer.

(ii) Compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed.

(iii) Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations.

(iv) The court is entitled, and it has the duty, to heed the effect its decisions may have upon the course of awards in the future.

(v) The fall in the value of money is a factor which should be taken into account in terms of the purchasing power, but not with such adherence to mathematics as may lead to an unreasonable result.

(vi) No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, according to whether he be a millionaire or a pauper.

(vii) Awards must reflect the state of economic development and current economic conditions of the country. They should tend towards conservatism lest some injustice be done to the defendant.

(viii) For that reason, reference to awards made by the English and South African Courts may be an inappropriate guide, since conditions in those jurisdictions, both political and economic, are so different.

For sexual harassment in particular, I consider that some of the broad principles to be taken into account, in the assessment of compensation, should include:

(i) The nature, extent, duration, and seriousness or intensity of the injury to feelings;

(ii) The subjective circumstances and the gender of the victim and of the perpetrator;

(iii) The power dynamics or power relations and socio-economic imbalances between the victim and the perpetrator;

(iv) The age difference between the victim and the perpetrator;

(v) The pattern of behaviour or conduct of the perpetrator before or after the wrongful act;

(vi) The prevalence of such misconduct and the general conditions of employment;

(vii) The degree of the deprivation of the amenities of life as a result of the injury suffered.

See, generally, VISSER & POTGIETER, Law of Damages, 3rd ed, Juta…,.: see also McGregor v Public Health and Social Development Sectorial Bargaining Council & Ors CCT270-20.

The Plaintiff's Case

It being a claim for damages, the plaintiff has filed an affidavit of evidence in terms of Rule 60 of the old rules of this court, now Rule 25(1) of the new High Court Rules, 2021.

She has suffered psychological damage.

Amongst her pile of papers is a brief medical report from a general practitioner. There is also a more detailed one from a psychiatrist. The sum total of these reports is that, as a result of the sexual harassment, the plaintiff suffered severe post-traumatic stress disorder. This condition manifested almost immediately after the abuse. She experienced recurrent involuntary and intrusive memories of the traumatic event. Her pain was acute, with chances of recovery rated as being very poor. Treatment would be extensive and indefinite. During treatment, which included counselling, the plaintiff would often meander and get distracted. She suffered physical and emotional pain, with scarcely suppressed anger. During the counselling sessions, she would lose track of her answers midway through and would ask that questions be repeated.

The psychiatric report notes that the psychological damage is widespread.

Her personality has changed significantly. Before the incident, she was engaging, outgoing, and loved reading. She had a good sense of humour.

All that is gone.

She experiences recurrent nightmares. Her sleep is broken most nights. That leaves her drained physically and mentally. She was pursuing a law degree. She has had to drop. She has lost all confidence in herself.

There was another kind of collateral damage.

She says her marriage broke up; largely because of the change in her personality. Furthermore, being out of employment, and, therefore, without a steady income, she had to sell her immovable property to finance medical bills, legal costs, and the general upkeep of her family.

All this was in the psychiatric report.

She says she lost another immovable property that she had been buying. She says the situation was further compounded by the defendants' conduct after her unfair dismissal. She could not secure alternative employment thanks to the defendants' negative testimonials to her potential prospective employers.

The plaintiff's case seems such a textbook case. Manifestly, no amount of money seems adequate enough to compensate her loss.

The Quantum

Principles are easy to set out. They are not so easy to apply to the nuts and bolts of any given case.

Considering all that the plaintiff has gone through: what is the level of damages that is fair, adequate, proper, and reasonable?

At the end of it all, it boils down to the exercise of a value judgment by the court. It is a matter of discretion. A fair balance between the principles on the assessment of damages and the peculiar circumstances of the case should ensure that the exercise of that discretion is judicious, not capricious or whimsical.

As said by the court, in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC), the court must take heed of the effect of its decision upon future awards. But, at the same time, the court must not be seen to be paying lip service to values espoused in the Constitution on human dignity and integrity.

Compensation must be tangible.

In this case, that the sexual harassment happened and must be compensated for the harm it has caused is the one aspect. But, there are some other aspects of the case that have to be taken into account in arriving at the quantum:

The sexual harassment was persistent. There has never been an apology.

One thinks it would have been quite salutary and a measure of atonement for the injured brain. At the arbitration, the first defendant sought to dismiss his reprehensible conduct as mere jokes. He was callous. He engineered the plaintiff's dismissal from employment. After the incident, and the dismissal, she was not treated with sensitivity. Even discounting what the second defendant's President is alleged to have said to her [because that aspect is still to be decided], the person to negotiate an out of court settlement with the plaintiff, was none other than the first defendant himself.

He was non-committal. Inevitably, an out of court settlement was still born.

The power balance and socio-economic dynamics between the plaintiff and the first defendant were skewed.

He was the Chief Executive Officer. She was his personal assistant. He had immense power over her.

When litigation commenced, it was intentionally stalled. It is now almost two decades since the incident happened. It is only thanks to her tenacity that the case has remained alive in the legal system.

Undoubtedly, a measure of punitive damages is warranted. But, unfortunately, none of all this tells the court how much to award.

The plaintiff wants a globular USD500,000. This level of quantum has no precedence. But, again, damages for sexual harassment have no precedence at all in this jurisdiction - at least to one's knowledge.

However, there is a salient detail that has contributed to the decision on quantum.

In 2010, during without prejudice negotiations for an out of court settlement, when she was still legally represented, the plaintiff's monetary proposals for mutual termination of employment were $60,000 after tax, $100,000 for sexual harassment and $8,500 for legal fees.

Taking all factors into account, it is considered that the proper level of damages for the sexual harassment perpetrated by the first defendant upon the plaintiff, during the period of the plaintiff's employment with the second defendant, from September 2002 to June 2003, is USD180,000 [one hundred and eighty thousand United States dollars].

Therefore, the following order is hereby made:

(i) The first defendant shall pay the plaintiff the sum of USD180,000 [one hundred and eighty thousand United States dollars], or the equivalent thereof in local currency, convertible at the inter-market bank rate at the time of payment.

(ii) The first defendant shall pay the plaintiff the amount aforesaid together with interest at the prescribed rate from the date of this judgment to the date of payment.

(iii) The first defendant shall pay the plaintiff's costs of suit.

(iv) The first defendant's liability in terms hereof is joint and several with the liability of any other person as may be found liable to the plaintiff in respect of the sexual harassment which is the subject of this judgment.

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

In the case of Timothy Chinyadza v Melton Phiri HH76-09, KUDYA J…, defined contumelia as follows:“Contumelia is equated to the injury, hurt, insult, and indignity inflicted upon a plaintiff by adultery committed by a defendant with his or her spouse.”One does not require a magnifying glass to scrutinize and come ...

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI
Ruled By: KUDYA J

In both Nyandoro v Tizirai HH12-06 and Gombakomba v Bhudhiyo HH118-06, I adopted the definition of contumelia set out in Doyle v Salgo (1) 1957 R N 840…,; Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…,; and Takadini v Maimba 1996 (2) ZLR 737 (S)…,.Contumelia is equated to ...

HH668-14 : ELIZABETH TANYANYIWA vs LINDIWE HUCHU
Ruled By: CHIGUMBA J

In both Nyandoro v Tizirai HH12-06 and Gombakomba v Bhudhiyo HH118-06 the court adopted the definition of contumelia set out in Doyle v Salgo (1) 1957 R N 840…,; Katsumbe v Buyanga 1991 (2) ZLR 256 (H)…,; and Takadini v Maimba 1996 (2) ZLR 737 (S)…,.Contumelia is equated ...

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J

This was an action matter. On the date of trial, it was postponed sine die by consent.

The defence had raised a special plea of prescription. The plaintiff was not conceding it. In terms of a timetable agreed upon, the parties would file their written submissions. Judgment on prescription would be delivered on the papers.

This now is that judgment.

The facts were common cause. The parties filed a Statement of Agreed Facts. They were these:

The defendant is a private company. It is responsible for, among other things, the distribution of electricity nationwide. In this regard, it runs and maintains, among others, electricity transmission conductors. The plaintiff sued it for damages arising out of injuries sustained by him when he had come into contact with live conductors.

The plaintiff's case was this:

On 11 March 2009, he was herding cattle in Mashava. He came into contact with naked electricity conductors. They were live and concealed by grass in the grazing field. He was electrocuted. He suffered severe burns from the chest to the knees. He stayed in hospital for six months. His right hand had to be amputated. The degree of his disability, as a result of those burns, was estimated at 40%.

The plaintiff alleged the defendant had been negligent in the following respects:

(i) It had failed to inspect and detect that its conductors had fallen onto the ground;

(ii) It had failed to secure the conductors so that they would not fall to the ground;

(iii) It had failed to clear the grass along its transmission lines so that fallen conductors could easily be detectable.

The plaintiff assessed his damages at $60,334 for pain and suffering, medical expenses, and the loss of amenities of life.

The plaintiff's summons was issued and served in March 2018. That was exactly nine years after the incident.

The defendant raised the special plea of prescription.

Generally, in terms of the Prescription Act [Chapter 8:11] an ordinary debt becomes prescribed after the lapse of three years from the date when the cause of action arose.

The defendant alleged the plaintiff's cause of action arose on the date of the incident.

On the merits, the defendant completely denied the plaintiff's allegations. It said he had been the author of his misfortune. He had wanted to steal the electricity conductors. The defendant denied they had fallen onto the ground. It claimed the plaintiff had tried to pull them down with his axe - from a height of about 2.5 metres above the ground. That was when he had been electrocuted. The defendant had actually reported the plaintiff to the police for theft. He had been arrested; but, in September 2016, the police had let him go for lack of evidence.

That was seven years later.

In his answer to the defence of prescription, the plaintiff maintained, that, the cause of action had arisen in September 2016 when he had been cleared by police. He said prescription had not begun to run when the incident had occurred.

Relying on cases such as Dube v Banana 1998 (2) ZLR 92 (H); Mukahlera v Clerk of Parliament & Ors HH107-07; and Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H) which defined “cause of action” as the combination or entire set of facts that are material for the plaintiff to prove in order to succeed in his action, the plaintiff argues, that, until the police had dropped the criminal charges against him, he would not have been able to discharge the burden upon him that it had been the defendant's negligence that had caused him the injury and consequent loss to him.

The plaintiff further relies on the cases of Thompson v Minister of Police 1971 (1) SA 371 (E) and Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H) for the argument that no action lies until the criminal proceedings have terminated in favour of a plaintiff.

Plainly, the plaintiff's argument on prescription is ill-conceived. His cause of action is manifestly prescribed.

Both parties are agreed, that, the plaintiff's cause of action is a 'debt' within the meaning of section 2 of the Prescription Act [Chapter 8:11], namely, being a “debt” that may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.

The plaintiff's claim arises from delict. It is an ordinary debt. The period of prescription is three years.

The plaintiff's cause of action arose when the incident happened.

In terms of section 16 of the Prescription Act, prescription begins to run as soon as a debt is due. A debt is due when the plaintiff has gathered all the entire set of facts about the cause of action as are material to prove his or her claim.

In this case, the plaintiff's cause of action was complete when he had gathered all the information as to, among other things, whose electricity conductors they were; allegedly that they had been in a state of neglect; allegedly that they had been lying naked on the ground whilst concealed; the sort of injuries that he had sustained; the monetary loss that he had incurred, or would incur, and so on. Those are the kind of material facts as are contemplated by cases such as Dube v Banana 1998 (2) ZLR 92 (H).

If three years elapsed before the plaintiff had taken action or interrupted prescription, then, his cause of action would be extinguished. The lapsing of a debt, by prescription, is absolute, unless one can show that prescription does not apply or that the running of it was delayed or interrupted.

Section 17 of the Prescription Act provides for situations where the completion of the period of prescription is delayed. None of them applies to the plaintiff's case.

Sections 18 and 19 of the Prescription Act provide for situations where the running of prescription is interrupted. These are when the debtor acknowledges liability and when the creditor serves process on the debtor claiming the debt.

The plaintiff expressly concedes that none of these applies to him either.

That should mark the end of his case – but, his counsel has crafted the argument that prescription should not be raised against the plaintiff because his cause of action only arose in September 2016 when the police abandoned the criminal case against him.

That the plaintiff had been arrested by the police for the alleged theft of the conductors and/or that it had taken the police seven years to clear him is not one of the factors that interrupts or delays the running of prescription.

Whilst a single incident may give rise to multiple types of proceedings, including criminal and civil, the outcome of one does not bind the other or others.

The police and the prosecution could well have been pursuing a criminal case. The plaintiff was not precluded from pursuing his civil claim timeously after he had become satisfied that his injury and loss had arisen by reason of the defendant's negligent conduct.

The plaintiff's arguments, that, until the police had exonerated him of the theft allegations, it was not known whether it was him or the defendant who had been to blame for his electrocution or that without having been so exonerated he would not have been able to prove his cause of action, are thoroughly ill-informed.

He himself knew, and had concluded, that, he had been electrocuted by reason of the defendant's negligence. He did not need the police or anyone to tell him that. Furthermore, and at any rate, even after being exonerated, he would still need to prove liability on the merits as the defendant was contesting it.

Cases like Thompson v Minister of Police 1971 (1) SA 371 (E) and Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H) are completely inapposite and the plaintiff's argument misconceived.

These cases were concerned with situations, where, one sues the police and its parent ministry in respect of wrongful conduct, such as wrongful arrest or malicious prosecution. In such situations, until the criminal proceedings terminate in favour of the plaintiff, he or she would be hard pressed to prove wrongfulness or malice on the part of the police. That is why he or she has to wait for the proceedings to end, and to end in his or her favour.

In casu, the plaintiff's situation is different and incomparable.

It is the finding of this court, that, the plaintiff's claim has prescribed. Therefore, it is hereby dismissed with costs.

Back Main menu

Law Portal
Zimbabwe

Delictual Damages re: Bodily, Personal Injury or Contumelia and Non-Patrimonial Loss iro Approach

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

View Appeal
SC13-11 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO
Ruled By: KUDYA J

HH84-09 : LIZZIE MUKUMBA vs THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER OF POLICE
Ruled By: KUDYA J

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

HB42-09 : MARGRET MOYO vs MR SIZIBA and DOKOTELA OMNIBUS, represented by R DOKOTELA and TRUST INSURANCE BROKERS
Ruled By: NDOU J

SC56-13 : ELIZABETH NDAVA vs TENDAI CHIVIZHE TAKARUWA and ELIZABETH ARTZINGER
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA 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

HB101-10 : MISHECK VELLAH vs JEALOUS MOYO (alias) MUSHONA and MIKA MOYO
Ruled By: NDOU J

HB54-13 : NKOSITHABILE MDLONGWA vs MLUNGISI NGWENYA
Ruled By: MAKONESE 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

HMA19-17 : VENGAI RUSHWAYA vs NELSON BVUNGO and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HB118-16 : ABEL MKHWANANZI vs TIRIVAVI TOTAMIREPI and MINISTRY OF SOCIAL WELFARE
Ruled By: MAKONESE 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

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

HH148-15 : JUDITH NYOKA vs NYAMWEDA BUS SERVICE and ZIMNAT LION INSURANCE
Ruled By: MUSAKWA J

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY
Ruled By: MAKONESE J

HH40-13 : TREVOR SIMBANEGAVI vs OFFICER JACHI
Ruled By: MAKONI J

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI
Ruled By: KUDYA J

HH668-14 : ELIZABETH TANYANYIWA vs LINDIWE HUCHU
Ruled By: CHIGUMBA J

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J

Categories

Law Portal Zimbabwe

Delictual Damages re: Bodily, Personal Injury or Contumelia and Non-Patrimonial Loss iro Approach

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

View Appeal SC13-11 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO Ruled By: KUDYA J

HH84-09 : LIZZIE MUKUMBA vs THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER OF POLICE Ruled By: KUDYA J

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE Ruled By: CHITAKUNYE J

HB42-09 : MARGRET MOYO vs MR SIZIBA and DOKOTELA OMNIBUS, represented by R DOKOTELA and TRUST INSURANCE BROKERS Ruled By: NDOU J

SC56-13 : ELIZABETH NDAVA vs TENDAI CHIVIZHE TAKARUWA and ELIZABETH ARTZINGER Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD Ruled By: CHATUKUTA 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

HB101-10 : MISHECK VELLAH vs JEALOUS MOYO (alias) MUSHONA and MIKA MOYO Ruled By: NDOU J

HB54-13 : NKOSITHABILE MDLONGWA vs MLUNGISI NGWENYA Ruled By: MAKONESE 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

HMA19-17 : VENGAI RUSHWAYA vs NELSON BVUNGO and THE SHERIFF FOR ZIMBABWE N.O. Ruled By: MAFUSIRE J

HB118-16 : ABEL MKHWANANZI vs TIRIVAVI TOTAMIREPI and MINISTRY OF SOCIAL WELFARE Ruled By: MAKONESE 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

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

HH148-15 : JUDITH NYOKA vs NYAMWEDA BUS SERVICE and ZIMNAT LION INSURANCE Ruled By: MUSAKWA J

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY Ruled By: MAKONESE J

HH40-13 : TREVOR SIMBANEGAVI vs OFFICER JACHI Ruled By: MAKONI J

Appealed HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS Ruled By: CHATUKUTA J

View Appeal SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

Appealed HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: DUBE J

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAFUSIRE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE Ruled By: MWAYERA J

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI Ruled By: KUDYA J

HH668-14 : ELIZABETH TANYANYIWA vs LINDIWE HUCHU Ruled By: CHIGUMBA J

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY Ruled By: MAFUSIRE J

Categories

Your Donation.

Law Portal
Zimbabwe

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

View Appeal
SC13-11 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO
Ruled By: KUDYA J

HH84-09 : LIZZIE MUKUMBA vs THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER OF POLICE
Ruled By: KUDYA J

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

HB42-09 : MARGRET MOYO vs MR SIZIBA and DOKOTELA OMNIBUS, represented by R DOKOTELA and TRUST INSURANCE BROKERS
Ruled By: NDOU J

SC56-13 : ELIZABETH NDAVA vs TENDAI CHIVIZHE TAKARUWA and ELIZABETH ARTZINGER
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA 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

HB101-10 : MISHECK VELLAH vs JEALOUS MOYO (alias) MUSHONA and MIKA MOYO
Ruled By: NDOU J

HB54-13 : NKOSITHABILE MDLONGWA vs MLUNGISI NGWENYA
Ruled By: MAKONESE 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

HMA19-17 : VENGAI RUSHWAYA vs NELSON BVUNGO and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HB118-16 : ABEL MKHWANANZI vs TIRIVAVI TOTAMIREPI and MINISTRY OF SOCIAL WELFARE
Ruled By: MAKONESE 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

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

HH148-15 : JUDITH NYOKA vs NYAMWEDA BUS SERVICE and ZIMNAT LION INSURANCE
Ruled By: MUSAKWA J

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY
Ruled By: MAKONESE J

HH40-13 : TREVOR SIMBANEGAVI vs OFFICER JACHI
Ruled By: MAKONI J

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI
Ruled By: KUDYA J

HH668-14 : ELIZABETH TANYANYIWA vs LINDIWE HUCHU
Ruled By: CHIGUMBA J

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J