The plaintiff has issued summons against the defendant for the return of its trailer registration number 467-556M which had been leased to the defendant and which lease agreement has now been cancelled.

Despite demand, the defendant has failed and/or refused to return the said trailer. Alternatively, the plaintiff prays that the value of the trailer should be paid to it.

The basis of the claim is that the trailer belongs to the plaintiff. Upon the expiry of the lease the trailer should have been returned to the owner.

The issues for determination were agreed upon by the parties at the pre-trial conference. These are:

(a) Whether the trailer in question was stolen at all or alternatively lost as a result of negligence or any other actionable wrong on the part of the defendant.

(b) Whether the fact that the trailer was supposed to be insured absolves the defendant of his duty of care and/or risk in respect of the said trailer.

(c) Quantum of damages which may be awarded to the plaintiff.

The onus of proof for issues (a) and (b) is on the defendant and (c) on the plaintiff.

The plaintiff called Martin Jonathan Rowland as a witness. He is the Managing Director, Commercial and Industrial Holdings of the plaintiff company. He said at the time of the transaction, Mr Mhaka dealt with the late Mr Schoffield. At some stage, the plaintiff became aware of the fact that vehicles leased out to the defendant were not being properly maintained and they were damaged in some instances. When they realized that the agreement was not working, they called for the return of the final vehicle i.e. the trailer subject matter of these proceedings.

The defendant informed them that the vehicle had been stolen. The plaintiff was only informed, in 2003, that the trailer was stolen. He said the duty to insure the trailer was on the plaintiff company. Although the risk of loss was on the plaintiff company, he said the defendant had a duty to timeously inform the plaintiff of the theft, which the defendant did not do in this case. This deprived the plaintiff company the right to claim from its insurers and this seems to be the argument.

This witness said if the report of theft had been made to the late Mr Schoffield, the latter would have reported at their company monthly meetings where legal issues are discussed. He said for an insurance claim to be made, the defendant was supposed to give full details of the theft and do so on time. He said the defendant did not provide the date of the theft. They were not provided with police initial report details. They were not sure whether the trailer was stolen or not. They demanded the return of the trailer, failing which replacement value of the trailer.

Under cross-examination, he conceded that there is no clause in the agreement which imposes a duty on the defendant to report theft to the plaintiff, let alone doing so timeously. He stated that the plaintiff did not, on its own, report the theft of the trailer to the police because they were not sure there was a theft; it was up to the defendant to report as the custodian of the trailer. When asked whether the plaintiff had bought a replacement trailer he said it was difficult to say because the plaintiff buys trailers regularly but from 2002 they bought trailers in 2004.

The plaintiff also called Dabpson Kanyoka, the Bulawayo Branch Manager, Zimnat Lion Insurance Company. He placed the value of the trailer at $20 million at the time he testified. Under cross-examination he conceded that he is not an expert in such assessments and that he relied on assessments done by engineers.

His testimony does not take the matter any further.

The plaintiff then called Vongai Gapare, a former senior underwriter at Zimnat. She authored the letter, exhibit 3, which gave the current market value of the trailer as Z$2.2 million in September 2006. She conceded that she did not consult the experts as the matter was urgent. She said she just used “information at hand” to arrive at that figure. She, however, later consulted an engineer who placed the value at $9 million.

Her testimony does not take the matter any further. Her evaluation is “off-the-cuff” and she is not, in any event, an expert in the field.

The plaintiff then called Bhekimpilo Moyo. He said he does vehicle valuation in assessments. He is a qualified vehicle body repairer and has been in the industry for over ten (10) years. He did a desk evaluation for the trailer in question at the behest of Zimnat Lion. He arrived at the conclusion that a similar trailer would be valued at Z$9,5 million.

The Managing Director of the defendant company, Amos Mhaka, testified. He said at the time the agreement was entered into it was not explained to him that he had a duty to notify the plaintiff on time of any theft or loss of the trailer. He said this was not put in black and white either. He said the trailer was stolen and he reported the theft to the police. He took the police reference number to the late Mr Schoffield. He said the trailer was stolen between August and October 2004. He said the trailer was stolen when it was en route from Harare to Bulawayo. The trailer developed mechanical problems around Battlefields area. His employee, the late Jonathan Mhlanga, was driving at the time. When Jonathan became aware of the theft of the trailer, he reported the matter to Battlefields Police before he contacted him.

The late Constable Mashati was dealing with the matter and he required that the registration book and the insurance policy be submitted. This information was recorded by then Constable Mushati on a piece of paper. When Jonathan Mhlanga gave him this piece of paper he (i.e. the witness) telephoned Mr Schoffield and eventually went to see him at his Harare office. Mr Schoffield told him that he had some urgent business to attend to in Mutare and told him to leave the police reference note in his office and he indicated that he would attend to the matter. When, in 2003, the defendant started receiving letters from the plaintiff demanding the return of the trailer, he assigned a driver to get the police reference details at Battlefields Police Station. The driver was informed that the police detail dealing with the matter had passed on. He said this demand for the return of the trailer was after he had given the police reference to the late Mr Schoffield. He did not keep a copy thereof.

He said that at the time of the issuance of summons in this matter the defendant was no longer paying rental for the trailer. The defendant last paid rentals in 2002.

Under cross-examination it became apparent that he was not being truthful on the fate of the piece of paper allegedly obtained from the late Constable Mushati. Whilst in his testimony, as alluded to above, he said he gave it to the late Mr Schoffield, in the pleadings it is the defendant's case that it was lost or misplaced. In fact, the pleadings are that the original was given to Mr Schoffield and he remained with a copy yet he now disputes ever remaining with a copy.

This discrepancy is on a material issue of whether the plaintiff was ever notified of the alleged theft prior their demand for the return of the trailer.

Mr Mhaka is the sole witness for the defendant.

As alluded to above, he confirmed the existence of the lease agreement and that he personally dealt with the plaintiff concerning this lease agreement. He, however, does not have first-hand knowledge of the theft of the trailer. He never personally made efforts to verify whether or not the driver had indeed made a report to the police. All his evidence around that issue is hearsay.

The driver of the truck on that day in question is Jonathan Mhlanga who is late. The other person who could have enlightened the court about the police report is a constable who is also late.

He said enquiries made at the Battlefields Police Station by the defendant have not yielded anything. There is no record at the police station that any report was ever made.

Against this background, the plaintiff denies that the trailer was stolen and demands that the defendant should prove that fact by at least producing a police report.

Mr Mhaka does not have anything in his files on the police report i.e. references. Mr Mhaka said he notified director, Mr Schoffield, who, like other key witnesses, is late. The late Mr Schoffield did not usually deal with such matters and Mr Mhaka could not give a satisfactory explanation why he did not deal with the other officials with whom he had dealt with on a day-to-day basis before. He simply gave the reasons that the relations between them had soured hence the need to deal with defendant's director, Mr Schoffield.

It seems highly unlikely that people who only know all the evidence of whether or not the trailer was stolen and the police report that was made, and Mr Schoffield, have taken those secrets to their graves. It is also highly unlikely that upon receiving information about the theft of the 20 tonne trailer, which was so central or important to the business and the particular contract, Mr Mhaka would not himself have personally made a follow-up. This is moreso in view of the fact that the relations between the plaintiff and the defendant have soured.

Mr Mhaka confirmed, under cross-examination, that at that point he did not trust the plaintiff as he felt that they had treated the defendant badly before. He felt that the plaintiff had swindled the defendant on the payment for the trailer. All this is more reason why he should have been more meticulous in keeping records and in dealing with the plaintiff.

In short, the defendant has failed to discharge the onus resting on it to prove the theft.

It is common cause that the plaintiff would be responsible for insuring the trailer and not the contents of the trailer. The trailer was insured according to the evidence of Mr Rowland. A claim could not be made because a report to the plaintiff was not made timeously. To date, there is no evidence of any police report - which is the main requirement of the insurers. In any event, this is neither here nor there and does not have a bearing on this matter;

(i) Firstly, the defendant has not proved, on a balance of probabilities, that the trailer was stolen. As alluded to above, such onus was on the defendant.

(ii) Secondly, even if it was, the plaintiff was not timeously informed of the alleged theft.

(iii) Thirdly, even if the plaintiff had been informed, this would not absolve the liability of the defendant.

In Principles of Delict by JONATHAN BURCHELL (1993), Juta & Co…, the learned author rightly stated:

“The general principle underlying the award of damages under the aquilian action (and the law of delict as a whole) is one of compensation to the plaintiff. But, frequently, a person injured may have his losses partially or wholly met from outside or collateral sources other than the said damages. Examples of such collateral benefits are: gifts or donations, pension, sick pay benefits, insurance (both indemnity and none indemnity) and medical and…,.

The general rule is that the receipt of money by the plaintiff from an insurance company is not deductable from his damages. The plaintiff has to exercise foresight in taking out insurance cover, for which he has paid premiums on a regular basis and shall not be deprived of the benefit of the cover. Nor should the defendant be spared for liability for his negligence simply because he has, by chance injured a foresighted individual whose losses are covered by insurance.”

Within the context of indemnity insurance, with the rules of subrogation applying, the insurer, once it has paid out the insurance cover to the plaintiff, is placed in the shoes of the plaintiff and can pursue the claim against the defendant to recoup its own loss. In so doing, the insurer can claim in the name of the plaintiff.

It is clear, therefore, that the negligence of the defendant is not absolved by the new effect insurance – Mackenzie v SA Taxicab 1910 WLD 323 and Dippenaar v Shield Insurance Co. 1979 (2) SA 904 (A).

Benefits in terms of indemnity insurance, which a plaintiff has received or will probably receive on account of his loss, are seen as res inter alios acta i.e they are not taken into account in reducing his damages – Ackerman v Loubser 1918 OPD 31; Teper v McGees Motors 1956 (1) SA 738 (C); Van Dyk v Cordier 1965 (3) SA 723 (O); Law of Delict by J NEETHLING, J M POTGIETER and P J VISSER (2^nd Ed).., and A Guide to the Zimbabwean Law of Delict by G FELTOE (3^rd Ed)..,.

All in all, the defendant remains in possession of the plaintiff's trailer and has not returned it.

In the absence of any other probable explanation, which is supported by direct evidence, an award must be made in favour of the plaintiff.

On the question of the quantum of damages the onus is on the plaintiff.

Different valuations of the trailer were given during the pleadings and the trial on account of the rapid escalating rate and re-denomination of the currency. The Zimbabwean dollar is no longer in use. The court has taken judicial notice of this notorious fact – Ndawana v Nasho & Ors 2000 (1) ZLR 23 (H) and Reza v Nyangani 2001 (1) ZLR 202 (S). This court has to strive to arrive at an equitable remedy based on recent valuation. The difficulty is that the recent value given during the trial was denominated in Zimbabwean dollars which is no longer in use. The court has to find a way of obviating the problem created by this intervening event.

Accordingly, it is ordered that:

(1) The defendant be and is hereby ordered to return the plaintiff's trailer registration number 467-556M within seven days of service of this order.

(2) Failing compliance with paragraph (1) above, the defendant is hereby ordered to pay the plaintiff the current market value of a similar trailer as assessed by the average of evaluations of three independent qualified motor vehicle evaluators, with interest on the figure tempore morae from 16 March 2005.

(3) The defendant will bear the costs of this suit on the ordinary scale.

The plaintiff's claim against the defendant was for:-

(a) The return from the defendant all the property mentioned in paragraph 6 of its declaration;

(b) In the alternative, payment in the sum of $29,793,200= being the value of the property that the defendant's employees took unlawfully;

(c) Interest a tempore morae from the date of service of summons to date of full payment; and

(d) Costs of suit.

The property that allegedly went missing was this:-

1. 1 x Pentium III Compaq D300 computer;

2. 1 x Samsung fax machine;

3. 4 x telephone receivers;

4. 2 x JH visitors' chairs;

5. 2 x swivel chairs;

6. 2 x executive secretary chairs;

7. 12 x lever arch files;

8. 12 x C3906 A toner cartridges;

9. 12 x 92A toner cartridges;

10. 18 x 96A toner cartridges;

11. 2 x 15A toner cartridges;

12. 8 x 26A ink cartridges;

13. 7 x 25A ink cartridges;

14. 14 x 29A ink cartridges;

15. 14 x 29A ink cartridges;

16. 18 x 49A ink cartridges;

17. 10 x A4 bond paper reams;

18. 1 x ceramic toilet pan;

19. 5 x 3 lever lock set;

20. 21 x Genicom ribbons;

21. 2 x boxes Eversharp pens;

22. 1 x Heavy duty paper punch; and

23. 4 x boxes staple pins.

The parties attended a pre-trial-conference where they formulated the issues to be determined by the trial court as follows:-

“1. Whether or not defendant and plaintiff entered into a lease agreement as alleged by plaintiff;

2. The terms of the alleged lease agreement;

3. Whether or not plaintiff took cession of certain lease between AB Mining and defendant;

4. The terms of any such cession;

5. Whether or not plaintiff's occupation of the defendant's premises was lawful;

6. Whether or not defendant, through its employees, unlawfully removed or stole plaintiff's property as set out at paragraph 6 of the plaintiff's declaration; and

7. The value of the property referred to above.”

The plaintiff called one witness in an endeavour to prove its claim. Its Managing Director, Mr Rodrick Mahachi (herein referred to as Mahachi) told the court that in 2001 he was looking for office accommodation when he saw an advert in the newspaper advertising Officer Number 8, Beverly Building. He proceeded to the premises and saw a Mr Muguti in Office Number 8, Third Floor. He was advised that office accommodation was available but that the premises belonged to Beverly Building Society. However, Mr Muguti told him that he had to pay him for the partitions, carpets that he himself had fitted into the premises and other renovations. Rodrick Mahachi was agreeable and paid for that.

After he had made the payment the two of then proceeded to Beverly Building Society to see a Mr Ndlovu who was managing the 15^th Avenue branch of Beverly Building Society. When they were there Mr Muguti told Mr Ndlovu that Mr Mahachi was going to occupy the place which had been advertised in the newspaper. Mr Mahachi alleged that when he requested for a lease agreement from Mr Ndlovu he was told that it (the lease agreement) would come later since it would be processed from Harare. He, however, was allegedly given an account number for Beverly Building Society into which to deposit the rentals.

Rodrick Mahachi said the plaintiff immediately took occupation of the premises and began to sell computers and computer cartridges. He alleged that he had continued paying rentals for some time.

At one stage he left to go to Mtshabezi Hospital where he had some work to do. He then failed to pay his rental for about 2 or 3 months prompting Beverly Building Society to lock up the premises. He received a report to that effect from a young man he had left manning the office. Following that report he returned to Bulawayo and found that their office had indeed been locked up. The plaintiff's property had been moved to another room. He attributed his failure to pay rentals for 3 months to the fact that he had used the money on the Mtshabezi project which he was anxious to complete.

He then approached Mr Ndlovu and asked him to return the property. When he went into where the property had been put he discovered some of the property missing. Papers, envelopes and receipts were strewn all over the floor. Some of them had been thrown into the dust bin. When he confronted Mr Ndlovu about the missing property he (Ndlovu) allegedly said that would be known by one Tennyson since he had been present when the property was moved from the plaintiff's office to another.

He, in the company of Mr Ndlovu, confronted Tennyson who allegedly stated he suspected some employees of the defendant who had come from Harare to service the defendant's computers in Bulawayo. The employees were said to have been using the office in which the plaintiff's property had been put. Tennyson allegedly suspected them to have stolen the missing property.

Following the suggestion made by Mr Ndlovu the two went to see a Mr Moyo, the General Manager of the defendant, who promised to investigate the matter after Rodrick Mahachi had given him a list of the alleged missing property. The list of the alleged missing property was filed of record at page 7 to 8 of the plaintiff's bundle of documents. Rodrick Mahachi gave Mr Moyo a time frame within which to complete investigations but nothing was forthcoming within that period prompting him to hand the matter to his lawyers.

He went with his lawyer to collect the remaining property which they signed for. The signatories to the list were his lawyers, Tennyson, Mr Ndlovu and the witness himself. According to the list filed of record on page 5 to 6 of plaintiff's bundle of documents the collection was done on 11 April 2003. Rodrick Mahachi claimed that the loss of property caused his Mtshabezi project to collapse resulting in him failing to pay his employees.

Since the lease agreement was still between the defendant and AB Mining he was told to deposit the rentals into the account that AB Mining had with Beverly Building Society which is what he did and kept copies of his deposit slips.

Mr Ndlovu allegedly assured him that since Tennyson had said the missing items had been stolen by the defendant's employees full investigations would be carried out. He went on to say that the matter had been referred to the defendant's lawyers. He concluded by saying from then onwards the plaintiff should deal with him (Ndlovu).

In order to determine the prices of the items that went missing he obtained three quotations from reputable companies dealing in such items. Matkan, which was the cheapest of the three, gave a total value of US$37,810=80; Computer Shop's total value was US$40,497=25 and Bexley gave a total of US$44,378=50. The quotations were filed of record on pages 7, 8 and 9 of the plaintiff's bundle of documents.

Under cross-examination, Rodrick Mahachi was unable to say how much he had paid as rentals. He agreed that the arrangement to lease the premises was between him and Muguti. His lease agreement with the defendant would only be processed at the end of the AB Mining lease.

The witness said he did not report the matter to the police because Mr Ndlovu and Mr Moyo had assured him that full investigations would be carried out and he would be given a feed-back; which he did not get. When it was put to him that his quotations were hearsay his reply was that he asked for three quotations and was given the ones filed of record.

The court observes that the quotations are indeed inadmissible hearsay as their compilers were not called to testify in court.

The plaintiff closed its case after Rodrick Mahachi's testimony.

The defendant called two witnesses who were its former employees. The first was Tennyson Ndiweni who was employed as the defendant's Branch Controller of the 15^th Avenue and Main Street branches in Bulawayo. All communication from Head Office went through him.

His evidence was that he was not directly involved in the lease agreement between the defendant and AB Mining as that was the responsibility of one Goodness Ndlovu, the valuer, who had since left the defendant and was in Botswana.

When A B Mining was unable to pay its rentals it had to look for someone to occupy its office during the currency of the lease between it and the defendant. It found the plaintiff. Apart from the arrangement the plaintiff had made with AB Mining, which was represented by one Muguti, the plaintiff did not get a lease from the defendant. All it did was to move into the offices that were being leased by AB mining and paid rentals into AB Mining account.

The witness said the plaintiff took occupation of the offices in July 2001, but, by September 2001 was already unable to keep pace with its payments for rentals. No rentals were paid from October 2001 onwards.

When the defendant made efforts to find out why rentals were not being paid, Mr Mahachi, who was described as the proprietor of the plaintiff, could not be located. The employees of the plaintiff also professed ignorance of his whereabouts. Their belief was that he had gone to Botswana since he was not communicating with them.

Faced with the non-payment of rentals by the plaintiff, whose proprietor was nowhere to be found, Mr Ndlovu instructed the witness to instruct the Chief Messenger to remove the plaintiff's property from the office officially rented by AB Mining. The Chief Messenger, with a team of other six messengers, did the removal commencing after lunch to the end of business that same day.

The witness himself never handled the plaintiff's property. He was emphatic that he had no chance of stealing the property. He explained that it was not possible for him to do so as he had no keys to the building and did not even have the combination to the strong room door. As far as the witness was concerned that strong-room was a very secure place. He went so far as stating that it was impossible for anyone to remove property from there; the reason being that whoever has the key to the building does not have the key to the strongroom.

When Mr Mahachi eventually surfaced and approached the witness in connection with the property, he referred him to Learnad Moyo, the Administrator.

The witness averred that he next saw Mr Mahachi on the day he was handed the plaintiff's property from the strong room. The property was listed as it came out of the strong room. The original list was filed of record at pages 10 to 12 of the defendant's bundle of documents and Rodrick Mahachi signed it. Mr Mahachi complained that a lot of the plaintiff's property was missing and he was going to seek legal recourse. The witness, however, did not believe that whatever was missing, if any, could have gone missing from the strong room.

The witness revealed that Mr Mahachi had attempted to inflate the number of items that he claimed had gone missing. He alleged that 8 chairs had gone missing but a search in the building conducted in his presence established that he in fact had sold 4 chairs to two companies that used to share office space with him. The witness held a view that the list of items that allegedly went missing was far shorter than what Mr Mahachi wanted the court to believe.

Under cross-examination, the witness was emphatic that there was no lease agreement between the plaintiff and the defendant and reiterated that the plaintiff paid rentals into AB Mining account during the currency of its lease.

His story was supported by Learnad Nkonzo Moyo, a former employee of the defendant who used to be the Administrative Manager for Matabeleland. When outlining the procedure of how the defendant leases out premises he said when premises fall vacant the practice was to advertise them. Interested parties would submit their applications. The successful applicant would be recommended for a lease agreement in writing. The proposed lease agreement would then be forwarded to Head Office in Harare where the final agreement was prepared within three or four days; hence, the successful applicant would get his lease agreement immediately after that.

The above procedure did not take place in respect of the plaintiff. Mr Moyo first learnt about the plaintiff's presence in the defendant's premises when it had already taken occupation. He also learnt that the plaintiff was occupying the office with the blessing of AB Mining whose lease with the defendant was still extant. He was emphatic that the plaintiff itself never went into a lease agreement with the defendant.

The witness said he did not think that the plaintiff's claim was of any significance. He thought the claim involved little items. He did not get any report about the defendant's employees stealing the property. Disciplinary action would have been taken if that had happened.

Under cross-examination, it was suggested to the witness that the defendant should have warned the plaintiff that the office would be locked due to its non-payment of rentals. His reply was to the effect that Mr Mahachi was regrettably nowhere to be found and there were reports that he could have been somewhere in Botswana. He gave the same answer when it was put to him that the defendant should have taken legal action on discovering that the plaintiff was an illegal tenant.

What comes out clearly from the evidence adduced by the defendant is that the plaintiff had no lease agreement with the defendant. This much was accepted by Mr Mahachi. Consequently, the defendant had no legal relationship with the defendant and its occupation of the premises was merely tolerated on the basis that it would fulfill a role previously fulfilled by AB Mining and Equipment Supplies (Private) Limited.

The plaintiff dismally failed to fulfill that role by failing to pay the rentals.

Further, no formal cession of the rights and obligations of AB Mining and Equipment Supplies (Private) Limited was effected.

The evidence also established that despite the fact that Mr Mahachi tried to inflate the list of the items that he claimed to have gone missing Tennyson's report, on page 14 of the defendant's bundle of documents, shows only four items could not be found on collection from the strong room i.e;

(1) Compaq CPU only;

(2) Samsung fax machine;

(3) Telephone receiver x 2; and

(4) Ceramic toilet pan (broken).

The plaintiff failed to prove the values of the above items. It attempted to do so through inadmissible hearsay evidence of quotations whose compilers did not testify in court.

Although the court has found that the plaintiff failed to prove the value of the four items supra it, however, finds that the defendant's employees were responsible for their going missing. The employees, who were a team of the defendant's messengers, were specifically instructed to remove the items from the office used by the plaintiff to the strong room. They were certainly acting within the scope of their employment. Tennyson's report reflects that they had been removed from upstairs the previous year but had been found missing on collection from the strong room. See report on page 14 of the defendant's bundle of documents. Regrettably, the value of the missing items has not been established. The items were no longer in the possession of the defendant. It would therefore be unable to return them to the plaintiff.

In the alternative, the plaintiff claimed payment of the sum of $29,793,200= being the value of the property that allegedly went missing. That value, however, is inclusive of items of property for which the plaintiff failed to adduce evidence specifying such items. In any event, the change of the Zimbabwe currency, as published in Statutory Instruments 199/2006 to 6/2009, S.I.199 of 2006 to S.I.6 of 2009, renders the amount claimed non-existent. No attempt was made by the plaintiff to amend its claim in any way.

In the light of the foregoing findings I would dismiss the plaintiff's claim with costs.

The issues for determination as defined at the pre-trial conference are -

1. On what legal basis is the defendant liable to the plaintiff?

2. Did the defendant exercise reasonable care while the consignment was in its custody?

3. Is the defendant liable for the loss of the consignment, and, if so, is the defendant liable to the plaintiff for compensation in the amount claimed?

Ms. Florence Sigudu Matambo, the plaintiff's Executive Director, gave evidence for the plaintiff. She confirmed that the defendant received its consignment of electrical goods valued at US$44,202=50 comprising transistor spares for radio transmitters for the whole country. As proof of the value of the consignment she pointed to the invoice attached to the summons. She also relied on the Airway Bill which they received from the defendant for purposes of customs clearance to enable them to clear the goods before collecting them from the defendant. She further confirmed that when they went to collect the consignment, after clearing the goods with customs, the consignment was found missing. On 14 April 2008 the defendant wrote to them confirming that the consignment was definitely received but was now missing from their warehouse. The letter reads -

“Dear Sir,

MISSING SHIPMENT 129-3963-9165 EXMP8317-030308

Reference is made to the above captioned subject and our numerous telephone conversations. Please be advised that the state of affairs on the said matter remains as was from the time your organization intended to collect shipment after customs formalities. Shipment arrived on board Martinair on 3 March 2008 and was stored in the warehouse as per normal procedures. On 8 March a monthly bay check was conducted as per procedures; information on paper indicates that shipment was indeed still in the warehouse pending customs clearance and subsequent collection.

It was after clearance that shipment was discovered missing. All efforts to locate same have proved negative and how it mysteriously disappeared from the warehouse still remains an unsolved puzzle to this day.

We sincerely regret the inconveniencies rendered to your organization as a result of this mishap and want to assure you that an act of this magnitude will not repeat itself in the future.” ...,.

Ms. Florence Sigudu Matambo insisted, in her evidence, that the defendant owed the plaintiff a duty of care. Its liability, therefore, flowed from its breach of the duty of care.

The defendant having accepted responsibility for the safe custody of the consignment it obviously had a duty of care towards the plaintiff. That being the case, it had the obligation to account to the plaintiff for the whereabouts, or fate, of the consignment while it was under its custody. It also had the same obligation towards its insurers, yet, when asked to account for the whereabouts of the consignment by both parties the best the defendant could say was that it did not know as the consignment had suffered a mysterious disappearance. That explanation falls far too short of discharging the duty of accounting for the property to both its insurers and the plaintiff. The insurers can hardly be faulted for refusing to indemnify the defendant when it was unable to account for the property. Likewise the plaintiff was entitled to claim compensation in the absence of a reasonable explanation of what had happened to the consignment.

There is equally no merit in the defendant's partial defence to the effect that the plaintiff's failure to declare the value of the cargo so that it could have taken extra care of the property upon payment of an extra charge amounted to contributory negligence. That argument does not wash because the defendant was presented with the necessary invoices and Way Bill showing the value of the property before it assumed the duty of care over the property.

The plaintiff herein claims the sum of US$61,944=81 being money which the plaintiff expected to be allocated to it by the Reserve Bank of Zimbabwe in terms of a Tobacco Growers' Retention Scheme.

The plaintiff avers that the defendant negligently failed to submit the plaintiff's application and that, as a result of that negligence, the plaintiff failed to receive its retention money.

The defendant disputes any negligence or contractual obligation on its part and denies liability. In the alternative, it is pleaded that any damages proved by the plaintiff should be abated on the ground of its contributory negligence….,.

Chantelle Natalie Kriel is employed by the plaintiff, which is a family business operating as a commercial tobacco grower.

The plaintiff participated in the 2007 retention scheme and also wanted to participate in the 2008 scheme. She prepared the requisite application to the Reserve Bank of Zimbabwe on the 16^th of September 2008 for the retention of US$62,000= (equating to ZW$241,000= at the official exchange rate). She telephoned the defendant before submitting the application, which was then taken by hand to the defendant's Harare Branch by her mother-in-law. The witness arranged for sufficient funds in the plaintiff's current account with the defendant, to meet the ZW$ payment, by paying in ZW$250,000= on the 9^th of October 2008. After the retention application was delivered to the defendant, she assumed that it had been duly forwarded to the Reserve Bank of Zimbabwe. Subsequently, she saw the Reserve Bank of Zimbabwe notice in The Herald and noticed that the plaintiff was not listed as a creditor or beneficiary. She immediately contacted the defendant, and, after several further enquiries, she was told that the plaintiff's account was inadequately funded at that time in order to process the retention application. She was then sent a bank statement for the relevant period. This showed that the sum of ZW$250,000= had been deposited and credited a few days later on the 13^th of October 2008. However, several unusually exorbitant bank and interest charges in October and November had reduced the account into debit. The defendant had not informed her about these charges before imposing them nor had it advised her that the account was overdrawn. In the past, whenever the account was overdrawn, the defendant's staff would inform her by cell-phone or e-mail and she would take immediate steps to credit the account.

Evidence for the Defendant

Simbarashe Zenza was employed by the defendant in 2008 as an Account Relationship Manager.

He confirmed that the exchange rate which obtained at the time of each sale was that which was applied even in respect of a lump sum retention claim at the end of the growing season. However, the ZW$ equivalent was to be forwarded, at the same time as the application was submitted by the grower's bank, to the Reserve Bank of Zimbabwe. In the instant case, the defendant was unable to submit the plaintiff's application because its current account balance was always below the requisite amount of ZW$241,000=. This was due to the prevailing account maintenance and interest charges levied on the account. Soon after the application was received by the defendant, the witness checked the account balance and on the same day sent an SMS message to Chantelle Kriel stating that there were insufficient funds in the account to process the application. After she deposited ZW$250,000= into the account he did not advise the plaintiff that this would be insufficient as he assumed that it was aware of the increased maintenance and interest charges. Under cross-examination, he admitted that on previous occasions, whenever the plaintiff was advised of a debit balance, it would take steps to rectify the problem within a few days.

He also conceded that the defendant had an obligation to inform its customers of any increase in maintenance fees.

Moreover, counsel for the defendant accepted that in terms of paragraph 2.7 of the Reserve Bank of Zimbabwe's Revised Operational Modalities, the defendant was required to transfer the ZW$ equivalent to the Reserve Bank of Zimbabwe simultaneously with the plaintiff's retention claim. Consequently, it was admitted that as from the date of the plaintiff's deposit of ZW250,000= into its account, and having discounted the unlawful fees and charges, there were sufficient funds in the account to enable the defendant to submit the plaintiff's retention application to the Reserve Bank of Zimbabwe in mid-October 2008.

Nevertheless, it was still the defendant's defence that the cause of any loss incurred by the plaintiff was the Reserve Bank of Zimbabwe's failure to pay and not the defendant's conduct.

On 19 January 2010, the applicant filed an application for condonation for the late filing of rescission of judgment granted in case no. HC6889/07 on 27 February 2008.

The application was opposed by the respondent.

On the date of hearing, the applicant withdrew the application and tendered costs on an ordinary scale.

However, the respondent prayed for an order for costs de bonis propriis against the applicant's legal practitioner…,. The respondent contended that the applicant's legal practitioner's conduct in handling the matter amounted to professional negligence and dishonesty. I ordered that the applicant's legal practitioner bear the costs for the withdrawal de bonis propriis.

These are my reasons for the order.

The background to the application is that the respondent filed a court application on 30 November 2007 for an order compelling cession of rights and interests in Stand No.1691 Unit M, Seke, Chitungwiza pursuant to an agreement between the respondent and one Zivanai Madzinga. Service of the application was effected on 9 December 2007. Zivanai Madzinga did not oppose the application and on 27 February 2008 judgment was granted in default. However, it turned out that Zivanai Madzinga had died on 18 January 2008 before the order was granted.

The applicant brought the present proceedings in her capacity as the executrix dative of the estate of the late Zivanai Madzinga. The applicant contented that she became aware of the default judgment on 20 October 2009 when she was served with an urgent chamber application brought by the respondent in case no.5033/09.

The respondent contended that according to an application for rescission of judgment filed by the applicant in case no. HC3708/08 the applicant had, in fact, become aware of the default judgment in June 2008 and not in October 2009. It was contended that the applicant was clearly lying and the falsehoods had been raised with the applicant's legal practitioner who chose not to take the appropriate action to deal with the falsehoods.

It is apparent that the applicant lied to the court that she only became aware of the default judgment in case no. HC6889/07 on 20 October 2009. On 18 July 2008 she indeed filed a court application for the rescission of the judgment in case no. HC3708/08. She deposed, in the founding affidavit to that application, that on 4 April 2008 she became aware of the fact that the respondent had filed a court application when she attended to the Seke South District Offices, Chitungwiza.  She only became aware of the default judgment on 16 June 2008 after her legal practitioners had made numerous visits to the High Court to establish the status of the application. She then proceeded to file the application for rescission. The application was dismissed on 8 October 2009 for want of prosecution upon application by the respondent in case no. HC1516/09.

Upon being served with the present court application on 19 January 2010, the respondent's legal practitioners wrote to the applicant's legal practitioners raising issue with the falsehoods in the application and the negligent manner in which the legal practitioners were dealing with the matter. The letter raised the following concerns:

“We wish to bring to your attention that you are deliberately making falsehoods in your application and definitely abusing Court process.  Kindly be advised that your client duly filed an application for Rescission of Judgment on the 16^th July 2008 with the assistance of her then Legal Practitioners, Messrs Mungeni Legal Practitioners.  She never pursued her application after we had duly filed our client's opposing papers.  We subsequently filed a Chamber application for dismissal of your client's application for want of prosecution since we had given her several reminders to file her Answering Affidavit or set the matter down. Our said Chamber Application was duly granted and her application was dismissed.

What is more surprising is that you have proceeded to file the instant application despite full knowledge of these past events. Surely, you cannot claim that your client did not advise you accordingly since in our urgent chamber application, filed under case no HC5033/09, and to which you duly filed your client's opposing papers, this position was clearly set out and the necessary documentary proof including, inter alia, your client's court application for rescission of judgment under case no. HC3708/08 and all the orders were duly attached.”

Despite these concerns, the applicant's legal practitioner persisted with the application with the falsehoods therein contained.  He was warned of the consequences of proceeding with the application and that is the respondent would pray for costs de bonis propriis but he proceeded regardless of the warning.

There is a plethora of cases that warn legal practitioners to desist from acting negligently and in a highly reprehensible fashion least they are ordered to bear costs of any litigation de bonis propriis. (See Doelcam (Pvt) Ltd v  Pichanick & Ors 1999 (1) ZLR 390 (HC); Matamisa v Mutare City Council (Attorney-General Intervening) 1998 (2) ZLR 439 (SC); Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400 (SC); Omarshah v Karasa 1996 (1) ZLR 584 (HC); Masama v Borehole Drilling (Pvt) Ltd 1993 (1) ZLR 116 (SC); Techniquip (Pvt) Ltd v Allan Cameron Engineering (Pvt) Ltd 1994 (1) ZLR 246 (SC); Gondwe v Bangajena 1988 (1) ZLR 1 (HC)).

It is my view that the applicant's legal practitioner's conduct warrants that he be penalized for exposing not only the respondent but also his client to considerable prejudice. The applicant's legal practitioner had been the applicant's legal practitioner in No.HC5033/09 when the applicant opposed the respondent's urgent chamber application. The urgent chamber application contained all the information that would have assisted him in ascertaining the averments that had been made by the applicant in previous litigation. The order dismissing the court application in case no.3708/08 was attached to the founding affidavit. All that he needed to do was to check with the references to ascertain when the applicant first became aware of the default judgment. The order itself was an indication that the applicant had previously instituted proceedings in relation to case no.HC6887/07. As he rightly conceded, he was negligent in not having conducted proper research. The letter from the respondent's legal practitioners should also have prompted him to be cautious and to reconsider the application and then adopt the proper procedure in addressing the issued contained in that letter.

On 11 August 2011, the plaintiff approached the defendant for assistance in organizing cattle sales in Beitbridge District. The parties agreed that the plaintiff would transfer money for the purchase of the cattle into the defendant's bank account and the defendant would withdraw the money to be used at the sale points. It was also agreed that after the rounds of sales, the un-utilized money would be transferred back into the plaintiff's account.

This arrangement was designed to avoid the plaintiff's buyers handling the money for security reasons.

On 22 August 2011, the plaintiff transferred US$300,000= into the defendant's account. The defendant began withdrawing the money in batches and the cash movement from the defendant's offices to the sale points was under armed police escort. Of the US$300,000=, a sum of US$62,714=20, including levies and bank charges, was used. A sum of $50,000= was not withdrawn from the defendant's account which means that effectively $187,286= remained in the defendant's hands after the conclusion of the cattle purchases on 27 August 2011; which amount the defendant was supposed to transfer back into the plaintiff's account. On 29 August 2011, the defendant's treasurer advised the plaintiff that there had been a burglary at their offices on the night of 28 August 2011 and the plaintiff's money was stolen.

The defendant refused to accept liability for the loss of the plaintiff's $187,286= despite its alleged negligence in keeping such a large sum of money overnight in its offices without putting in place arrangements for reasonable and tight security to safeguard the money - hence this civil suit. The claim is for payment of the amount in question, interest at the prescribed rate from date of summons to date of full payment as well as costs of suit on an attorney-client scale.

The defendant denied the alleged negligence and averred that the security system at its premises was adequate. The money was secured by armed police escort in transit to the defendant's offices and lodged in a Chubb safe in a strong room in a locked building guarded by a security guard. This was the type of security the defendant had depended on since time immemorial.

The plaintiff led evidence from three witnesses.

Macksen Kasora is the plaintiff's Management Accountant. He confirmed transfer of the US$300,000= from the plaintiff's CBZ Bank account to the defendant's Barclays Bank account on 22 August 2011 via exhibit 1 – the RTGs form. The defendant thereafter issued the plaintiff with a receipt – exhibit 2 – dated 24 August 2011. The money, he said, was for livestock purchases via an auction organized by the defendant. Out of the $300,000= only $62,710=20 was actually used inclusive of council levy of $4,053=, LDP levy of $1,621=20 and bank charges of $3,000=. The defendant issued a tax invoice – exhibit 3 – which shows a breakdown of the number of cattle purchased, the various charges raised and the amount to be refunded. The refund amount was $237,286= but only $50,000= was paid back on 12 September 2011 via RTGS leaving a balance of $187,286=. From a financial view point, the plaintiff has the defendant's acknowledgment that $237,286= is owed by the latter, who is the debtor and it should tell the plaintiff how it proposes to pay it and not what happened at its offices.

Clifford Wamambo is the plaintiff's acting Livestock Director running the plaintiff's livestock division. His evidence largely corroborates that of Macksen Kasora. He explained that as buyer, the plaintiff simply participated in the bidding of the cattle to be bought but all cash handling is done by the defendant who pays the sellers. Once the plaintiff deposits the money with the defendant, the plaintiff is never in control of the money and where there is surplus at end of the sales, the defendant refunds it to the plaintiff.

Young Sibanda is the plaintiff's Buyer. He is the one who was bidding for cattle on the plaintiff's behalf at the auctions organized and conducted by the defendant between 22 – 27 August 2011. It was the defendant's employees who would pay the sellers. He was given exhibit 3 at end of the auction by the defendant. He denied leaving the money with the defendant as he never handled any. 

After his evidence, the plaintiff closed its case.

The defendant led evidence from a single witness, Albert Mbedzi, who is the Chief Executive Officer. He has been so employed by the defendant since January 2001. He confirmed that the plaintiff did deposit US$300,000= into the defendant's bank account for purposes of buying cattle at cattle sale auctions organized by the defendant. $250,000= of that amount was withdrawn from the account to cover sales held between 22 and 27 August 2011. The plaintiff bought a total of 116 head of cattle. At the end of the last sale, on 27 August 2011, the defendant's staff did a reconciliation by way of a tax invoice. If the buyer has surplus funds, the defendant pays that money to the buyer who goes away with it. On this day he was telephoned while in Harare and was told that the plaintiff had surplus money and had requested that the defendant deposit that money into the plaintiff's account because the plaintiff had no security to carry the money. He agreed to the request.

He said the defendant's security system is very tight. The money was put in a strong-room in a Chubb safe with an un-armed security guard stationed outside. The defendant never expected that a robbery would take place. The guard's hands were tied and he was put into a store room and a hole was drilled into the strong room and the safe was cut open. He produced exhibits 4 – 8, pictures depicting a hole made in the perimeter fence and the front yard where the security guard was stationed (exhibit 4), a lamp holder whose lamp was removed which illuminated the back yard (exhibit 5), entrance door to the front office which was forced open and the strong room door and a hole drilled into the wall beside it (exhibit 6), cash boxes strewn outside the strong room and a cash in transit trunk ripped open (exhibit 7) and the Chubb safe inside the strong room cut open and the safe door (exhibit 8).

He denied negligence on the defendant's part as the defendant could not bank the money after banking hours. The robbery was immediately reported to the police but nothing positive came out of it. He averred that risk cannot be ascribed to the defendant because the plaintiff had the freedom to take its money with it at the conclusion of the reconciliation. The defendant accepted the money at the plaintiff's risk.

The defendant then closed its case.

In closing submissions, counsel argued on the plaintiff's behalf that it was a misnomer for the plaintiff to plead negligence in the pleadings because money being, res fungibles, risk in it passes with delivery and consequently, in casu, since the defendant had custody of the stolen money it bore the risk of the burglary. On the other hand, counsel for the defendant argued that it is impermissible for the plaintiff to alter goal posts in the manner it sought to do. The question of risk was never pleaded and to introduce it now amounts to taking the defendant by surprise thereby embarrassing it.

Counsel for the plaintiff countered averring that risk is a question of law and therefore could not be pleaded. For the proposition that risk in money passes with delivery he sought to rely on the following authorities: Commission of Customs and Excise v Bank of Lisbon International Ltd & Ano 1994 (1) SA 205; Deputy Sheriff, Harare v Miriam Hwanya HH105-06; and Pahad v Director of Food Supplies and Distribution 1949 (3) SA 695.

I, however, did not find that legal proposition in the cited authorities applicable in the case at hand. Not only are the facts in those authorities different from the present, hence distinguishable, but it cannot be an absolute or strict liability legal principle that risk in money passes with delivery. Even in cases where strict liability attaches to a public carrier, the carrier would not be liable if it established vis major. The authorities are clear that robbery is a form of vis major which relieves the carrier of liability. It would be inconsistent to find that the loss was caused by vis major and then proceed to find, in the alternative, that the defendant was negligent and therefore delictually liable: Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt) Ltd 1994 (2) ZLR 222 (HC).

In casu, there was a robbery at the defendant's offices that resulted in the loss of the plaintiff's money which was kept in a locked Chubb safe which was locked up in a strong room in a locked office with a security guard guarding the premises. In the event, there is no need to look at the issues of risk or negligence. It would be, to my mind, a bad law that accepts occurrence of a vis major and then proceed to hold a defendant delictually liable on the premise of risk or negligence. 

Even the negligence that was pleaded in this case was not proven by the plaintiff. The loss should lie where it falls however unfortunate it may be.

NEGLIGENCE IN RESPECT OF TERMINATION OF PREGNANCY

The negligence of the respondents' employees in relation to the non-termination of the appellant's pregnancy is pleaded as follows.

(i) Firstly, the police failed to attend at the hospital within a reasonable time or to take reasonable steps to ensure that the pregnancy was terminated.

(ii) Secondly, the matron failed to take reasonable steps to terminate the pregnancy.

(iii) Lastly, the prosecutors and the magistrate failed to attend timeously to or to take reasonable steps necessary for the issuance of a certificate for the pregnancy to be terminated.

The provisions governing the lawful termination of pregnancies are contained in the Termination of Pregnancy Act [Chapter 15:10]. According to its long title, it was enacted in 1978 as:

“An act to change the law relating to abortion by defining the circumstances in which a pregnancy may be terminated and to provide for matters incidental to or connected with the foregoing.”

In terms of the definition of “Minister” and “Secretary” in section 2(1) of the Termination of Pregnancy Act [Chapter 15:10], as read with Statutory Instrument 66 of 2010, S.I.66 of 2010, the administration of the Termination of Pregnancy Act [Chapter 15:10] is assigned to the Minister of Health and Child Welfare. i.e. the second respondent. There is nothing specifically stated in the Termination of Pregnancy Act [Chapter 15:10] pertaining to the administrative roles of the first and third respondents.

The circumstances in which pregnancy may be lawfully terminated are enumerated in section 4 of the Termination of Pregnancy Act [Chapter 15:10] as follows:

“Subject to this Act, a pregnancy may be terminated -

(a) Where the continuation of the pregnancy so endangers the life of the woman concerned or so constitutes a serious threat of permanent impairment of her physical health that the termination of the pregnancy is necessary to ensure her life or physical health, as the case may be; or

(b) Where there is a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will permanently be seriously handicapped; or

(c) Where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse.”

The term “unlawful intercourse” (as substituted by section 282 of Act No.23 of 2004) is defined in section 2(1) to mean:

“rape, other than rape within a marriage, and sexual intercourse within a prohibited degree of relationship, other then sexual intercourse with a person referred to in para (i) or (j) of subsection (1) of section 75 of the Criminal Code.”

Section 5 spells out the conditions under which pregnancy may be terminated. It provides, in its relevant portions, that:

“(1) Subject to section seven, a pregnancy may only be terminated by a medical practitioner in a designated institution with the permission, in writing, of the superintendent thereof.

(2)…,.

(3) In the case of the termination of a pregnancy on the grounds referred to in paragraph (c) of section four, the superintendent shall give the permission referred to in subsection (1) on the production to him of the appropriate certificate in terms of subsection (4).

(4) A pregnancy may only be terminated on the grounds referred to in paragraph (c) of section four by a medical practitioner, after a certificate has been issued by a magistrate of a court in the jurisdiction of which the pregnancy is terminated to the effect that –

(a) He has satisfied himself –

(i) That a complaint relating to the alleged unlawful intercourse in question has been lodged with the authorities; and

(ii) After an examination of any relevant documents submitted to him by the authorities and after such interrogation of the woman concerned or any other person as he may consider necessary, that, on a balance of probabilities, unlawful intercourse with the woman concerned has taken place and there is a reasonable possibility that the pregnancy is the result of such intercourse; and

(iii) In the case of the alleged incest, that the woman concerned is related within the prohibited degree to the person with whom she is alleged to have had incest; and

(b) In the case of alleged rape or incest, the woman concerned has alleged in an affidavit submitted to the magistrate or in a statement made under oath to the magistrate that the pregnancy could be the result of that rape or incest, as the case may be.

(5)…,.

(6)…,.”

It is clear from these provisions that permission for the termination of pregnancy pursuant to unlawful intercourse may only be granted by the superintendent of a designated institution. The precondition for that permission is the production of a certificate from a magistrate within the same jurisdiction. As is evident from section 5(4)(a) (i) and (ii) of the Termination of Pregnancy Act [Chapter 15:10], the issuance of a magisterial certificate is preceded by a complaint having been lodged with the authorities and the submission of relevant documents by those authorities. The term “authorities” is not defined in the Termination of Pregnancy Act [Chapter 15:10] but, in the context of unlawful intercourse, i.e. rape or incest, it would ordinarily apply to mean the police authorities. 

For present purposes, the critical question to be answered is whether the responsibility for instituting proceedings in the Magistrates Court lies with the relevant authorities or the victim of the alleged unlawful intercourse.

Counsel for the appellant submits that it is the police who should have presented the relevant documents to the magistrate, in terms of section 5(4)(a) of the Termination of Pregnancy Act [Chapter 15:10], and that any further affidavit by the appellant under section 5(4)(b) of the Termination of Pregnancy Act [Chapter 15:10] was unnecessary. The latter provision, so he contends, is confined to instances of intra-marital rape, where a simpler procedure is prescribed. Therefore, the learned judge a quo misapplied section 5 of the Termination of Pregnancy Act [Chapter 15:10] in finding that an affidavit from the appellant was a prerequisite for the issuance of a magisterial certificate. In support of his argument, counsel for the appellant relies on the case of Ex parte Miss X 1993 (1) ZLR 233 (H).

As I read this case, it clearly does not support any of counsel for the appellant's contentions. On the contrary, as is evident from its facts…, it was Miss X herself who made an application for a certificate in terms of section 5(4) of the Termination of Pregnancy Act [Chapter 15:10], pursuant to which the Provincial Magistrate in question recorded her full sworn statement. In any event, what can be usefully gleaned from the case is the standard of proof required to secure a certificate. As was observed by CHIDYAUSIKU J…, at 239F-G:

“In an application for termination of pregnancy, the stringent requirements of proof before a complainant's evidence can be accepted for the purpose of conviction do not apply. All that was required of the magistrate in this case was to be satisfied that the complainant probably did not consent to the alleged intercourse and that there was a reasonable possibility that the pregnancy arose from that intercourse.”

Turning to the question at hand, it is abundantly clear that subparagraphs (a) and (b) of section 5(4) of the Termination of Pregnancy Act [Chapter 15:10] are framed conjunctively and not disjunctively. Accordingly, their provisions and requirements must be construed as being conjunctive and cumulative rather than in the alternative. What they envisage is a single application and not two distinct processes applicable to different circumstances. The reference to “rape or incest” in subparagraph (b), as opposed to “unlawful intercourse”, may well be a drafting anomaly. However, it follows immediately after the reference in subparagraph (a)(iii) to “incest” only, and appears to have been inserted so as to make it clear that the applicant's evidence by way of affidavit or under oath is necessary in the case of both rape and incest.

What all of this means is that the victim of the alleged rape must depose to an affidavit or make a statement under oath - in addition to being present for possible interrogation by the magistrate. Given the ex parte nature of the procedure, an affidavit on its own may not always suffice to enable the magistrate to make the necessary determination, on a balance of probabilities, that the applicant was raped and that her pregnancy resulted therefrom. However, the applicant's affidavit or statement under oath is essential and required in every case, whether or not the magistrate decides to examine the applicant or any other person as he may deem necessary.

It follows from the foregoing that it is the responsibility of the victim of the alleged rape to institute proceedings for the issuance of a magisterial certificate allowing the termination of her pregnancy in terms of section 5(4) of the Termination of Pregnancy Act [Chapter 15:10].

What then is the role of the other participants in the overall process?

The role of the police and the prosecutor, upon request by the victim, or in response to a directive by the magistrate, is to compile the relevant report and documentation pertaining to the rape for submission to the magistrate. The role of the magistrate is to issue the requisite certificate upon being duly satisfied in terms of section 5(4) of the Termination of Pregnancy Act [Chapter 15:10], while that of the superintendent of the designated institution is to authorise its medical practitioner, upon production of the certificate, to terminate the unwanted pregnancy. It may also be necessary, where appropriate, for these functionaries to give accurate information and advice, within the purview of their respective functions, to enable the victim to terminate her pregnancy. But that, in my view, is as far as one can take the responsibilities and duties of the relevant authorities.

In taking this view, I have not disregarded the various international instruments discussed..,.

Amongst other things, they enjoin the relevant authorities to ensure that the perpetrators of sexual violence are brought to book and that the victims are given access to appropriate mechanisms of justice in enforcing their claims against their assailants. They also call upon the authorities to assist any such victim so as to enable her to effectively protect and control her biological integrity. In legislative terms, this would involve the enactment of an enabling legal framework for the termination of pregnancy in appropriate circumstances. In practical terms, it would also entail availing the necessary information and affording the requisite facilities, to the extent that this is possible, in accordance with the prevailing material and financial means of the State. However, I do not think that the obligations of the authorities can be extended to any legal duty to initiate and institute court proceedings within that framework on behalf of the victim.

Reverting to the appellant's claim, as pleaded, the police certainly cannot be held accountable for failing to accompany her to the hospital or to take other reasonable steps to ensure that her pregnancy was terminated. Their function in this regard was confined to producing such report or other document as may have been required to establish that the appellant had been raped. Again, it cannot possibly be said that the matron at the hospital failed to take reasonable steps to terminate the pregnancy. When presented with the magisterial certificate, she took the professional view, the correctness of which is not disputed, that it was no longer physically safe for the appellant's pregnancy to be terminated. As for the prosecutors and the magistrate, it appears that they may have given the appellant incorrect advice on the procedure to be followed for terminating her pregnancy. However, there is insufficient evidence on record to show what precisely transpired in the interaction between the appellant and these functionaries.

In any event, it is necessary, in dealing with this aspect, to consider the designated functions of a prosecutor and magistrate in proceedings under section 5(4) of the Termination of Pregnancy Act [Chapter 15:10]. The prosecutor has no specific role to play other than to furnish such documents as the magistrate may direct. The mandate of the magistrate is to consider and determine any application for termination of pregnancy that is placed before the court.

In my view, the circumspect approach adopted in Minister of Law and Order v Kadir 1995 (1) SA 303 (A) commends itself for application in the present context. 

Even on the broadest interpretation of the Termination of Pregnancy Act [Chapter 15:10], taken as a whole, I do not think that it is within the scope of prosecutorial or magisterial functions to give legal advice on the procedural steps required to terminate a pregnancy. To accept that position would be tantamount to opening the floodgates to a veritable deluge of claims founded on the perceived failure to act reasonably in relation to matters clearly beyond the bounds of their official competence. Moreover, I am inclined to believe that the convictions of the community and considerations of public policy would militate unequivocally against the imputation of liability in the present context.

Accordingly, on the facts of this case, I take the view that the duty of the prosecutors and magistrate to act reasonably in the performance of their functions did not extend to the giving of legal advice, whether accurate or otherwise, to the appellant. It was for her to have sought that advice aliunde, preferably from a lawyer in private or paralegal practice, as soon as possible after she became aware of her pregnancy in May 2006. It follows that the prosecutors and magistrate cannot be held liable for failing to take such reasonable steps as may have been necessary for the issuance of the requisite certificate. It also follows that it was the appellant's own failure to institute the necessary application that resulted in the inability to have her pregnancy timeously terminated.

I think it necessary to comment on the formulation of the statutory provision under consideration.

It is apparent from the foregoing that section 5(4) of the Termination of Pregnancy Act [Chapter 15:10] is ineptly framed and lacks sufficient clarity as to what exactly a victim of rape or other unlawful intercourse is required to do when confronted with an unwanted pregnancy. The subsection obviously needs to be amended. In particular, it is necessary to specifically identify the “authorities” that are referred to in the provision and to delineate their obligations with adequate precision. It is also necessary to systematically spell out the procedural steps that the complainant herself must follow in order to obtain the requisite magisterial certificate to terminate her pregnancy.This is especially so in the present context, where it is more likely than not that the complainant will be legally unrepresented.

The need to clarify the provision is abundantly self-evident from the facts of the instant appeal and the circumstances of the appellant. Moreover, it is a matter that calls for general attention by virtue of the international obligations of the State that I have alluded to earlier, viz. to afford assistance to rape victims to enable them to effectively protect and control their biological integrity. From a practical perspective, there is also the obligation to avail the necessary information to ensure the appropriate level of public awareness of the legislative and procedural measures in place.

This is an appeal against the judgment of the High Court sitting at Harare dismissing with costs an application for absolution from the instance.

Background

The respondent, who was plaintiff in the court a quo, issued summons claiming payment of damages in the sum of US$20,051= and costs of suit.

The basis of his claim was that he had consumed a contaminated coca-cola beverage and that further inspection of the bottle had revealed “a rusting iron nail and blackish foreign substances.” In his declaration, he alleged that the appellant, as the manufacturer of the beverage in question, owed him and the general public “a duty of care to ensure that the product is safe, clean, health (sic) and fit for human consumption,” and that the appellant had breached that duty by producing the contaminated coke. In the alternative, the respondent alleged that the appellant had “negligently allowed the production and selling of contaminated coke” which he consumed. In the result, he sought damages in the sum mentioned for what he termed “distress and anxiety.”

In its plea before the court a quo, the appellant denied that any harmful foreign particle of any nature was found in the unopened bottle of coke, and, in the event that it was, that it was inserted by the appellant before, during, or after the manufacturing process. The appellant further pleaded that its manufacturing process was in line with international standards of quality and that in any event the cleaning, manufacturing and bottling process made it impossible to produce a beverage that contained a nail. 

In short, the appellant denied producing contaminated coca-cola or any negligence in the production of the beverage.

The evidence

During cross-examination in the court a quo, the respondent appeared to accept that he had not suffered any nervous shock. The following exchange captures the evidence that came out during cross examination on this aspect:

“Q. Did you suffer any nervous shock as a result of consuming the contents?

A. Yes, at that time. To my surprise it came to my attention, I thought what if I had consumed the nail, wondered what could have been the outcome.

“Q. Let us not waste time on that; that does not constitute nervous shock does it?

A. Yes, I was actually shocked in that manner.

“Q. The question is does that constitute nervous shock?

A. No, I was actually shocked. Surprised and shocked at the same time in seeing the iron nail in the bottle.

“Q. You agree with me that no psychiatric condition developed as a result of the incident in you?

A. No, nothing of that sort.

“Q. As recorded in exhibit that we have placed before the court you similarly confirm that you did not develop any medical conditions?

A. No, I did not develop any medical condition.

Q. If, in fact, your personality was not in any way altered by the event that you described?

A. My personality as after consuming the iron nail, there was a slight change when I was about to (sic) another bottle during since coke was my favourite drink, I would observe more and look forward in seeing whether there is any substance inside or not.

“Q. You are simply saying you became more careful, you are not saying there was a change in personality. Is that not so?

A. When you say personality what do you exactly mean? Can you define personality in change?

“Q. Ok, I will not define what personality is but you accept that there has not been any change in you as a result of the incident that you described?

BERE J. He has become more cautious? 

A. That is what I would say.”

Questioned further, he had the following to say:-

“Q. Your claim is that you suffered anxiety and distress as a result of the incident. Is that so?

A. Yes it is.

“Q. And, you allerge (sic) you also had fear for the worst?

A. Yes I did have fear for the worst.

“Q. And, this is all that this claim is about, anxiety and distress?

A. Yes and also the manner in which my case was handled which I thought could have been handled in a better manner.”

“Q. You say you could have been affected if you consumed the iron nail but you did not consume it and you were not affected?

A. I repeat, my human body would have been affected if I had consumed the iron nail.”

On the question whether the appellant's processes involved in the production of beverages fell below the standard expected of a reasonable beverage manufacturer, the following exchange took place:

“Q. The basis of your claim is that defendant was negligent in manufacturing the product that you are talking about and you indicated in your evidence in chief that you were offered the opportunity to tour its facilities and you confirm now that you did not take that offer. Yes or no?

A. No I did not take that offer. As I had explained before for the banking of the site in which I was managing and at that time actually had not done the banking, so, I was in a hurry in doing so.

“Q. Did you subsequently take up your offer in order to be satisfied that defendants process (sic) are below the standards expectant (sic) of a reasonable manufacturer?

A. No, I did not take up the offer because it indicated to me during that meeting that they just wanted me to visit the plant in showing me that I placed the iron nail myself.

“Q. Do you agree with me that there is nothing that you can put before the court concerning the payment process?

A. Sorry, I did not get the last word?

“Q. You agree with me that there is nothing that you can put before the court concerning defendant's process on the basis upon which the court can find that defendant did not take necessary precautions or does not take necessary precautions in manufacturing its products?

A. No, there is no evidence. You said is there evidence that I have?

“Q. Yes, that was the question, and your answer is that there is no such evidence. Now, had there been any deficiencies, any defects in the defendant's processes. You agree with me that if you told the blunt you probably would have seen those?

A. No, I would not know of any defectives because I do not know how the machinery is operated but what I do know in any manufacturing process there is always room for human error.”

On the question as to which manufacturer of coca-cola beverages in the country was responsible for the production of the beverage in question, the following exchange took place:-

“Q. Are you aware that there are two entities that manufacture, packaged and distribute the product that we are talking about?

A. No, I do not know anything about the processes.

“Q. If I told you about Mutare Bottlers will that instill your memory?

A. Yes, I am aware.

“Q. The relevant bottle that we are talking about who had manufactured, packaged and distributed it?

A. No, I would not know but what I do know is the deliveries that we do place and orders come from the DELTA depot along Seke Road.”

During further cross examination, the respondent stated as follows:-

ADV MPOFU. Q. But you accept that the delivery is notwithstanding. It is important to establish the origins of the bottle because you do not know the interparty arrangements between the manufacturers?

A. I did not take in mind that the bottle came from different stock holds that is why I did not bother to identify where the bottle had come from.”

At the close of the respondent's case (plaintiff in the court a quo) the appellant applied for absolution from the instance.

Whilst acknowledging that the appellant was disputing that the drink in question had emanated from its plant, the court a quo reached the conclusion that the evidence tended to show that all was not well in the appellants' manufacturing processes. The court further reasoned that, although issue had been taken with the propriety of a claim for distress and anxiety, this was a legal issue to be dealt with at the end of the trial. Accordingly, the court a quo reached the conclusion that the appellant should be placed on its defence to rebut the plaintiff's allegations. 

It is against that order that the appellant has now appealed to this Court.

Grounds of appeal

In its grounds of appeal, the appellant has attacked the decision of the court on the following grounds:

1. That the court a quo erred in placing the appellant on its defence against a claim for stress and anxiety which claim is not cognisable at law and despite there not having been any evidence to support the claim made.

2. The court a quo also erred in postulating (without invitation) that a claim for stress and anxiety might fall under the head of pain and suffering notwithstanding that such was never the plaintiff's position and plaintiff had specifically abandoned a claim for stress and anxiety in favour of a claim for nervous shock.

3. The court a quo further erred in coming to the conclusion that the appellant could be put on its defence notwithstanding that no negligence had been alleged against it as required by law and superior court authority brought to the court's attention. It so erred in seeking to place reliance upon evidence of alleged negligence that had nothing to do with the claim placed before it.

4. The court a quo erred in placing the appellant on its defence notwithstanding that the plaintiff had not claimed that he had suffered any harm cognisable under the Aquilian action.

5. The court a quo erred in coming to the conclusion that the appellant should be put on its defence to defend the $51= claim for medical expenses notwithstanding that it was accepted by the plaintiff that he had been offered medical assistance and freely decided not to take it despite not taking issue with either its nature or quality.”

From my reading of the above grounds of appeal and the oral submissions made before this Court, it seems to me that there are in fact two main issues that arise for consideration. These are:

(i) Firstly, whether the respondent's claim before the court a quo disclosed a proper cause of action, and, in particular, whether he was entitled to damages for anxiety and distress, or, as submitted by his counsel during submissions made before the court a quo, nervous shock.

(ii) The second is whether negligence had been alleged and proved….,.

Whether negligence proved

There can be no doubt that the respondent's claim in the court a quo was based on the Aquilian action.  The respondent specifically pleaded that the appellant owed the general public a duty of care to ensure that its products are safe, clean, healthy and fit for human consumption. In the alternative, the respondent alleged that the appellant negligently allowed the production and sale of a contaminated coca-cola beverage.

The expression 'duty of care' is used in two separate and distinct senses. 

(i) The first sense in which it is used is in connection with negligence. A person is said to have breached the duty of care (i.e. to have been negligent) when he fails to foresee and guard against harm which the reasonable person would have foreseen and guarded against.

(ii) The second connotation of this phrase is in connection with wrongfulness. When it is used to denote wrongfulness, it will be used in this sort of way; although the reasonable man would have foreseen and guarded against harm, the defendant is not liable in the circumstances as the law does not recognize any duty of care to avoid causing that sort of harm (i.e. the conduct was not wrongful or to put it another way, there was no recognized legal duty to avoid causing harm by negligent conduct).

See A Guide to The Zimbabwean Law of Delict, Third Edition 2001 by G FELTOE…,.

In other words, in determining whether or not a person was negligent, there is need to determine whether harm was reasonably foreseeable, and, if so, whether the reasonable person would have guarded against such harm. As stated by G FELTOE in The Zimbabwean Law of Delict, Third Edition 2001:-

“…, there are some situations where, despite the fact that harm was reasonable, the reasonable person might not necessarily have taken any steps at all to prevent that particular harm or he might only have taken certain limited precautions. Therefore, in addition to reasonable foreseability, the question of what steps if any, the reasonable person would have taken has to be investigated…,.”…,.

Attention is also drawn to similar remarks by the learned author, BOBERG in The Law Delict at page 194;

In his heads of argument, counsel for the appellant argued that as no particulars of the negligence alleged were set out or proved, there was no basis upon which the appellant could have been placed on its defence. 

I am inclined to agree with this submission.

In an Aquilian action in which a plaintiff claims damages, whether for patrimonial or non-patrimonial loss, it is, I believe, incumbent upon such plaintiff to plead negligence on the part of the defendant and to set out the particulars of such negligence. Where such particulars are not set out, the defendant is embarrassed in his defence as he cannot know the basis on which liability is claimed. It is not enough to allege negligence and fail to give particulars of such negligence….,.

On the facts of this case, no particulars of negligence were alleged or proved. Such failure assumes an important dimension when regard is had to the fact that the appellant is a beverage manufacturer. It is now settled that the liability of a beverage manufacturer or brewery is not absolute. If the steps it took to avoid contamination were reasonable, in the sense that nothing more could reasonably have been done, then it would not be liable because it would not have been negligent.

Delta Operations (Pvt) Ltd t/a National Breweries v Charles Naraura SC106-99….,.

I would agree that at the end of the plaintiff's case before the court a quo, there was no evidence before the court on the state or condition of the bottling equipment used by the appellant. There was no evidence that there was anything amiss with either the equipment or the procedures adopted during the manufacturing process. There was no evidence that the appellant had failed to take necessary precautions in the manufacturing process. In a situation such as this, failure could have been not because of negligence but human error. There was therefore no evidence which could be tested against the objective standards of a reasonable beverage manufacturer. Evidence could indeed have been led from a neutral institution such as the Standards Association of Zimbabwe.

It was for the respondent to prove that the manufacturing processes of the appellant were deficient in particular respects. Only then could the appellant have been placed on its defence….,.

DISPOSITION

I am satisfied that for the additional reason that negligence was not proved and a causal link shown between the beverage in question and the appellant, absolution should have been granted.

The appeal must therefore succeed.

In the circumstances, the following order is made:

(1) The appeal succeeds with costs.

(2) The order of the court a quo is set aside and in its place the following substituted:-

Moreover, it was common cause that there are two separate companies involved in the manufacturing of coca-cola beverages. 

The plaintiff is leasing Dagbreek Farm from the State since 6 February, 2004. The first defendant is Makoni Rural District Council, a local authority in the area that Dagbreek Farm is situated. The second defendant is the International Organisation for Migration, a non-governmental organisation.

On 16 April 2012, the plaintiff issued summons for the payment of:-

(a) US$100,000= being damages for loss of property and vandalism.

(b) US$150,000= being damages for unlawful interference with farming activities at Dagbreek Farm and loss of crops.

(c) Payment of interest on the aforesaid sum at the prescribed rate from date of demand to date of full and final payment.

(d) Costs of suit at attorney and client scale.

On 28 May 2012, the first defendant filed its plea.

It denied authorising use of the farm, but said it authorised use of a 20 metre servitude which passes through the plaintiff's farm. It also said the Civil Protection Act allows it to use any land to save lives of the public when they are in danger. It denied inviting people to steal or destroy. It said the plaintiff acquiesced by her silence and is therefore estopped from complaining over the issue.

As pointed out in Goode v SA Mutual Fire and General Insurance Co. Ltd 1979 (4) SA 301…,;

“Negligence is conduct which involves an unreasonable risk of harm to others. It is the failure, in given circumstances, to exercise that degree of care which the circumstances on the occasion demand.”  

The first defendant created a situation where it designated Dagbreek Farm as a distribution centre, without notifying the plaintiff, as required by law, without her consent, and without even her knowledge.  This situation created an 'unreasonable risk of harm' to the plaintiff through vandalism and theft of her property. The situation the first defendant created behoved it to act with a high degree of care to ensure the protection of the plaintiff's property from harm from the hungry villagers getting in and out of the farm.  It had chosen not to involve the plaintiff in the management of this situation by not even informing her of its decision, thus assuming responsibility for the goings on at the farm. In Goode v SA Mutual Fire and General Insurance Co. Ltd 1979 (4) SA 301, the court said:-

“If the conduct of a person who owes a duty of care falls, even in the slightest degree, below the standard of a reasonably prudent man, he is guilty of negligence.”

In my view, the first defendant assumed a duty of care in designating Dagbreek Farm without the plaintiff's consent or knowledge, as a Distribution Centre. So far, it appears as if it failed to adequately protect the farm's infrastructure and property against vandalism occasioned by the uncontrolled movement of hungry people in and out of the farm. However, until the first defendant has testified and told the court the steps it took in the exercise of its duty of care, after designating Dagbreek Farm a food distribution centre, the court cannot make a final determination on whether the first defendant took reasonable steps to discharge its duty of care. 

So on this issue, again, the first defendant's evidence will be instructive….,.

The applicant instituted summons action against the three respondents in HC707/15 for payment of $320,000= as recompense for the financial loss it suffered as a result of the alleged negligent misrepresentation by them that they had a mandate to sell an undivided portion of Stand 32 Gatooma Township held by a company known as Laxman Investments Company (Pvt) Ltd on behalf of that company when in actual fact they did not.

It averred, in its declaration, that in the course and scope of their business of providing legal services as a law firm, the respondents represented to it that they were mandated and authorized by the owner to be its agents and attorneys to sell the property. They represented that the third respondent had been granted a general power of attorney by the owner to represent the owner in concluding a sale agreement and to accept payment of the purchase price and to do the conveyancing work in order to pass transfer of the property to the seller.

The applicant further averred that by virtue of their special position, as providers of legal services, it was reasonably foreseeable that the plaintiff would rely on their representation to decide to enter into a sale agreement involving the property. The applicant was induced by such representation to enter into a sale agreement and to pay the purchase price of $320,000= through the medium of the respondents who forwarded it to the seller who turned out not to be the owner of the property.

It averred that the respondents, as providers of professional legal services, owed it a duty to take reasonable care that their representation was true and reliable. They, however, wrongfully breached that duty of care in that the representation turned out to be a negligent misrepresentation which was incorrect and false because the true owner never mandated them as alleged. In addition, it was legally impossible to sell the undivided portion of the land as there was no subdivision permit as provided for in the Regional, Town and Country Planning Act [Chapter 29:12].

The respondents entered appearance to defend and filed a joint plea in the following:

“Defendants plead as follows to plaintiff's summons and Declaration;

1. Ad Paras 1,2

No issues

2. Ad Para 3

It is denied that third defendant is employed by first and second defendants as a legal secretary.

3. Ad Para 4

It is denied that first and second defendants made any of the representations alleged, either personally or through third defendant, or during the course and scope of their business. It is admitted that third defendant, in her personal capacity, made representations that she was mandated by General Power of Attorney;

3.1 To sell the property and receive the purchase price on behalf of the seller.

3.2 To prepare an agreement of sale and issue the necessary instructions to effect subdivision and transfer of the property.

4. Ad Para 5

It is denied that first and second defendants could reasonably have foreseen that plaintiff would place any reliance upon them. It is further denied that they made any representations to plaintiff.

5. Ad Para 6

5.1 It is denied that first and second defendants made any representations to plaintiff or that there was any nexus between plaintiff and themselves as legal practitioners, or that they played any part in inducing plaintiff as averred.

5.2 It is denied that third defendant's representations to plaintiff induced him to enter into the written agreement of sale.

5.3 It is admitted that third defendant received the sum of US$320,000= from plaintiff on behalf of the seller of the property and that payment was made by plaintiff in the belief that third defendant was authorized to receive payment in terms of a power of attorney executed by the seller.

5.4 Apart from the admission aforesaid, all averments herein are denied and plaintiff is put to the proof whereof.

6. Ad Para 7

This is denied and plaintiff is put to the proof thereof.

7. Ad Para 8

7.1 Ad Para 8.3, it is admitted that first and second defendants ought to have known of the provisions of the said Act. It is denied, however, that they prepared the agreement of sale. It is further denied that the agreement of sale in any way contravenes the said Act.

7.2 In all other respects, the averments in this Para are denied and plaintiff is put to the proof thereof.

8. Ad Para 9, 10 and 11

These are denied and plaintiff is put to the proof thereof.

9. Ad Para 12

It is denied that first and second defendants provided any professional legal services to plaintiff. In all other respects, the averments herein are denied and plaintiff is put to the proof thereof.

10. These are denied and plaintiff is put to the proof thereof.

WHEREFORE, defendants pray for dismissal of plaintiff's claim and costs of this action.”…,.

It is significant that the plea in question, and, indeed, the notice of appearance to defend were prepared, signed and filed by the law firm of Jarvis Palframan. In addition, it is noted that the reference of the person dealing with the matter is given as 'DGP/jo.' The first respondent's initials, even from the letter that he wrote on 13 November 2014, annexure “D” to the application, are 'DGP'. One cannot help observing that the third respondent's initials are 'JO' for Jolie Obert. Put together, therefore, it means that the individuals who were dealing with this matter right from the start are the first and third respondents.

In practice, law firms use references on correspondence and court process which start with the initials of the legal practitioner involved followed by a slash and then the initials of the secretary typing for that legal practitioner. It is a practice that is as old as the practice of law itself. 

Counsel for the respondents strongly argued that the inference that the first and third respondents' initials are the ones appended on all the court processes emanating from that law firm cannot be properly made.

In my view, that is trifling with the court in the extreme.

A reference is put on court process or correspondence in order to identify both the legal practitioners and the secretary authoring it and nothing else. Courts of law are not robots that are programmed to accept only that which legal practitioners feed them with. They make observations including that which I have made. The business of judgeship would be extremely tedious if judges were to turn a blind eye on the obvious merely because it is convenient for counsel to do so.

Upon receipt of the plea, which I have cited above, the applicant launched this summary judgment application on the basis that the plea reveals no bona fide defence at all to the applicant's claim and that appearance has been entered solely for dilatory purposes. The applicant maintained that a bald denial that the third respondent was employed by the firm is made, consistent with the fact that she was at all times employed and attending to members of the public at the firm, especially as the applicant received rentals for two months for the property from the third respondent at the offices of the firm. This was after the purported agreement had been signed.

The applicant asserted that the sale agreement was prepared by the law firm whose address is given as that of the seller and it appoints them as the conveyancers selected by the seller to undertake the transfer. Accordingly, his claim remains unassailable.

The respondents' lack of bona fides is reflected in their attempt to disown an employee, who, at all material times, was working from the business offices of the firm, using their office, computers and stationery, attending to members of the public, accepting payment of the money being claimed and liaising with the first respondent on all that she did.

On 4 November 2014, the legal practitioners of the applicant, Mutatu and Partners, addressed a letter of demand to the law firm. That letter was responded to on 13 November 2014 by the first respondent, by email, which reads, in relevant part, thus:

“Thank you for your letter dated 4^th November 2014 which was sent to us by email. Your client entered into an agreement of sale with Laxman Investments (Pvt) Ltd in respect of portion of a commercial property owned by the said company. As you are no doubt aware, the agreement provided for the purchase price to be paid in cash, direct to the seller. Our Mrs Obert was acting for the seller under a power of attorney granted by Mr Baloo Laxman, a Director of the seller. The purchase price was forwarded to the seller by way of a cash-in-transit delivery made by Fawcetts under armed guard and we hold the Fawcetts delivery note indicating that delivery. 

Despite the fact that your client appears to have been paid two months rental by the seller and despite considerable documentation to verify the transaction, the seller is now alleging that the transaction was inspired by some person resident in Harare who was acting fraudulently and who has forged signatures of both Directors and carried out an elaborate scam.

We cannot be certain, at this stage, as to the true facts. We have taken the precaution, however, of reporting the matter to the officer in charge of the serious crimes section of CID Fraud Squad in Harare and we have provided him with detailed statements relating to your client's transaction and that of a second sale which was carried out in relation to an adjoining property. The matter is currently under investigation and we will keep you advised of developments.

Yours faithfully

D. G. Palframan.”

This was before it became too hot in the kitchen; before the applicant had commenced pointing an accusing finger at the law firm and the legal practice in question was then accepting that both D. G Palframan and Mrs Obert were part of it. Things were to take a nasty turn though the moment the applicant started trying to hold them to account for their professional conduct. In fact, as is apparent upon reference to the plea which I have quoted verbatim above, even at that stage of filing a plea, their position was still that Palframan was part of the firm. That also changed when they opposed the summary judgment application.

Although Palframan prepared and signed the notice of opposition which was typed by Obert as his secretary, through the agency of Jarvis Palframan Legal Practitioners, as signified by his signature and their reference, in his opposing affidavit he stated that Obert was not an employee of either himself or the second respondent but worked for him as a Conveyancing Clerk for many years before he retired eight years ago.

Paraphrasing Palframan's sworn statement on the relationship of the respondents will not do justice to it.  He stated:

“3.1 The 3rd respondent is not an employee of either myself or the second respondent.

She worked for me as a Conveyancing Clerk for many years until I finally retired, approximately eight years ago. Since that time, my legal work has considered mainly of consulting work which I carry out in Harare or from my office at home. The third respondent works as an independent agent and since my retirement she has not received a salary either from myself or from the second respondent. She sets her own hours and although she uses the address of the Practice for the sake of convenience, her office merely adjoins the general complex occupied by the legal firm Jarvis Palframan and is entirely separate, with a distinct and clearly independent outside entrance separated from the main entrance to the Practice complex….,.

3.2 The third respondent's work consists of rental collections for several of her clients and general work relating to agreements and property transactions. She and I do work together in conveyancing or certain contractual matters which may arise, in which event we have a fee-sharing arrangement….,..

3.3 Although third respondent and I would, in normal circumstances, have benefited from conveyancing fees which would have been due pursuant to the purported transaction between the applicant and the seller, the execution of the agreement of sale itself was an entirely separate and independent transaction which was carried out by the applicant and the third respondent who was acting in the bona fide belief that she was duly authorized under a power of attorney granted by the seller.

3.4 I control an office which is next door to third respondent's office which I use largely to store files and to accommodate the bookkeeper who is employed by a small mining company with which I am associated….,.

3.5 The legal practice, which is known as Jarvis Palframan, is owned by second respondent. Nominally, I am still a consultant to the practice but second respondent and I are not partners and neither am I an employee of the practice. There is no fee-sharing arrangement between second respondent and myself….,.

4. The use of the term 'our Mrs Obert' merely indicates an association and does not signify that she is an employee….,.

4.6 There is nothing in the papers to indicate negligence or fraud (which has not even been alleged in the summons). Liability has been denied for very good reason, on the basis that there was no duty of care owed to applicant and that there was no negligence on the part of the respondents….,.”

Now that is a mouthful.

The other two respondents also deposed to affidavits generally associating themselves with what Palframan says. Obert generously added that the discovery that they had been representing what she terms 'a skilled confidence trickster' was made by none other than Palframan himself when by chance he met the real Mr Laxman, at which point Palframan and herself made a report to the police.

The essence of what the respondents are saying is that the legal practice of Jarvis Palframan belongs to Stephen Murambasvina alone.

However, there is also Douglas Palframan hovering about who retired eight years ago and does consultancy work at the firm where he has an office, although he also works from home and Harare but prefers to do mining. He has retained his former secretary or Conveyancing Clerk, Jolie Obert, as 'an independent agent', whatever that means, who also has an office somewhere at that firm and is in some kind of partnership with Palframan. She and Palframan are involved in conveyancing work together and they have “a fee-sharing arrangement.” 

All that is done in the name of the firm.

However, according to the respondents, both Palframan and Obert are neither partners nor employees of the firm but stand alone - although Palframan responds to correspondence addressed to the firm.  Although Obert is not a lawyer herself, being only a former Conveyancing Clerk there, she drafts agreements for clients in the name of the firm and undertakes conveyancing work in its name (one wonders who signs her documents for lodgment).

Obert also gets herself appointed by general power of attorney to represent clients in their transactions with members of the public (third parties), collects money from third parties on behalf of clients, which she does not receipt but transmits to her clients by Fawcett Security. When she receives rentals from clients for transmission to third parties, she does so at the offices of the firm but does not issue a receipt for what is, in essence, trust funds.

A volley of questions pop up: What kind of law firm is this? Is it operating in accordance with the law? Is the Law Society of Zimbabwe, which regulates legal practitioners in this country, aware of such a practice? Does it authorize it? Did it issue Palframan with a practicing certificate when he is into mining not the practice of law? If so, on what terms? Did it issue Jolie Obert with a practicing certificate?

Clearly, she is practicing law at the premises of that law firm and if the respondents are to be believed, she is doing so under the watch of the firm and illegally.

It is only if the story, as presented by the respondents, on the operations of that practice can be believed that they can successfully ward off this summary judgment application.

Counsel for the respondents submitted that it is not for the court, in an application of this nature, to concern itself with whether that explanation makes sense or not or with the conduct of the partners of the firm, it should be enough that they have denied that Jolie Obert is an employee or that Palframan is a partner. The truthfulness of that should be tested at the trial. All they have done is to establish triable issues.

It reminds me of the sentiments of McNALLY JA in Matambo v Mutsago 1996 (1) ZLR 101 (S)…, where the learned Judge of Appeal said:

“However charmingly, smoothly, or impressively Mr Mutsago made these statements, the fact is that they are mechanically impossible. If a witness says he saw water flowing uphill unaided by a pump, you do not judge his veracity by reference to his demeanour. You apply the law of physics.”

The Law Society of Zimbabwe takes pride in keeping a hawkish eye on the operations of all law firms in this country. It would not allow such glaring infractions to exist at a firm in Kwekwe, and, during spot checks, would certainly bring such malpractices to a stop. What it means is that the picture painted by the respondents, of a ragged practice, is so impossible in the circumstances of legal practice in Zimbabwe at the moment that it should be dismissed as nothing more than the self-serving fulminations of a group that finds itself cornered by a law suit for professional negligence which they simply cannot defend.

Summary judgment is an extraordinary remedy in the sense that it denies a party who has shown an interest to defend a claim, the opportunity to do so. It is a procedure conceived so that:

“A mala fide defendant might summarily be denied, except under onerous conditions, the benefit of the fundamental principle of audi alteram partem…, when all the proposed defences to the plaintiff's claim are unarguable, both in fact and in law…,.” (Chrisma v Stutchberry 1973 (1) RLR 277).

It has been stated, conversely, that, in order to succeed in defeating a summary judgment application, the respondent must set out a bona fide defence by alleging facts which, if proved at the trial, would entitle him to succeed. As poignantly stated by ZIYAMBI JA in Kingstons Ltd v L. D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,:

“Not every defence raised by a defendant will succeed in defeating a plaintiff's claim for summary judgment. Thus, what the defendant must do is to raise a bona fide defence – a 'plausible case' – with 'sufficient clarity and completeness' to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which, if established, 'would entitle him to succeed.' 

See Jena v Nechipote 1986 (1) ZLR 29 (S); Mbayiwa v Eastern Highlands Motel (Pvt) Ltd SC139-86; Rex v Rhodian Investments Trust (Pvt) Ltd 1957 R v N 723 (SR).”

Having contented themselves with denials in the plea while admitting that the applicant made payment to the third respondent in the belief that she was authorized to receive payment by the seller, the respondents went on to burn their fingers in their opposition to this application by setting out the activities of the third respondent as being entirely the practice of law. They simply could not disown her as their employee because everything points to her being one.

To that extent, should the respondents be allowed to go to trial in order to abuse the court by trying to disprove the obvious? Should they be given an opportunity to spend more court time arguing that a lawyer and/or his employee who represent a person in the mistaken belief that such person is Laxman when in fact that person is not Laxman but “a skilled confidence trickster” and misleads members of the public into believing that it is Laxman that they represent, are not negligent? Or that when section 39(1)(b)(i) of the Regional, Town and Country Planning Act [Chapter 29:12] prohibits the sale of an undivided piece of land without a subdivision permit, a lawyer who represents a purported seller in breach of that law is not negligent? 

What is there to try in such a matter?...,.

Having said that, the matter is therefore resolved. If ever the respondents had a defence to this claim which could be stood over for trial, they did not submit it in their papers - especially in the plea they intend to rely upon. I am satisfied, therefore, that summary judgment should be granted.

In the result, it is order that:

1. The respondents, jointly and severally, the one paying the others to be absolved, shall pay to the applicant the sum of $320,000= being recompense for the financial loss suffered by him as a result of their negligent misrepresentation.

2. The respondents shall, jointly and severally, the one paying the others to be absolved, pay interest on that sum a tempore morae at the prescribed rate from 10 April 2014 to date of payment.

The applicant contended that it has a good defence to the first respondent's claim where he was awarded US$4,000= for fire burns and US$20,000= for mercury poisoning.

Firstly, as regards fire burns, it is the applicant's contention that the first respondent voluntarily assumed risk when he lit a gas stove at 11pm in a thatched house in a sleepy state. He subsequently fell asleep only to wake up in an inferno. It is his sleepiness that caused the fire and the extent to which he suffered burns. This therefore absolves the applicant from any liability whatsoever.

Secondly, regarding damages relating to inhalation of mercury, the applicant submitted that it still has a good defence in that it relied on the first respondent's skill and expertise as a Mine Manager in providing whatever material the first respondent requested. In that respect, the first respondent is to blame for failing to procure what was necessary to maintain a safe working environment, including fire protection….,.

As regards the merits, the first respondent submitted that the cause of the fire was the absence of fire protection or prevention at the mine and that flammables were kept at and near the house where the first respondent was staying. He denied volunteering information during investigations over the cause of the accident. The attached Annexure G1 does not in any way prove that it was the first respondent's responsibility to abide by the standards of a milling company especially the failure to abide by the standards in the use of mercury and other chemicals. He finally submitted that the applicant has no defence to offer on the merits and was in willful default.

He prayed for the dismissal of the application with costs on a higher scale.

The rest of the averments in the plaintiff's declaration seemed an amplification of the alternative cause of action, the one based on negligence. They were these:

“2.8 Fifth Defendant is under a statutory duty and obligation to take measures to prevent its institutions, or the services its institutions offer, from being used to commit or facilitate financial crime.

2.9 Fifth Defendant, at the time of the fraudulent activities, had poor internal standards, inadequate policies and procedures and internal controls that promote high ethical and professional standards and poor to non-existent KYC procedures all of which amount to negligence on the part of Fifth Defendant and a breach of statutory duty for which it is criminally and civilly liable.

2.10 First, Second, Third and Fourth Defendants jointly and severally, took advantage of the opportunity created by Fifth Defendant's negligence and breach of statutory duty, to open and use fictitious accounts to defraud Plaintiff.

2.11 There exists a causal link between Fifth Defendant's negligence and First, Second, Third and Fourth Defendants' success in defrauding Plaintiff such that were it not for Fifth Defendant's negligence, the defrauding of Plaintiff would not have occurred.

2.12 Accordingly, the joint and concurrent wrongful, negligent and intentional actions of Defendants caused substantial patrimonial loss to Plaintiff.”

The Bank's exception was that the pension fund's claim against it disclosed no cause of action cognizable at law. The exception was pleaded as follows:

“(a) No special duty of care is, at law, or on the pleaded facts, owed by the fifth defendant to plaintiff.

(b) No basis exists at law, or on the alleged facts, for concluding that the creation of irregular accounts by first and second defendants amounts to a delict on fifth defendant's part.

(c) The criminal allegation raised against first and second defendants do not relate to the theft of goods stored with them as part of their employment duties and there is consequently no basis at law upon which vicarious liability for their thefts could be imputed upon fifth defendant.

(d) There is no basis at law, or on the alleged facts, for the view that the storage of stolen funds renders the storing banking institution liable for such thefts.”…,.

(b) Was the Bank negligent in relation to the pension fund?

Negligence is the failure, judged objectively, to exercise that degree of care expected in any given circumstances: R G McKERRON, The Law of Delict, 7^th ed….,.

It involves a duty of care and a breach of that duty. To found a cause of action there must have been a duty of care owed to the plaintiff that the defendant ought, reasonably, to have guarded against. Negligence in the air does not suffice. This is illustrated by the remarkable facts of the well-known American case of Palsgraf v Long Island RY, Co. (1928) 24 NY 339.

The English case of Bourhill v Young [1943] AC 62; [1942] 2 All ER 396 [HL] and the South African case of Workmen's Compensation Commissioner v De Villiers 1949 (1) SA 474 (C) also do help illustrate the point.

In this case, it was common cause that the pension fund was not a customer of the Bank. The plaintiff's declaration does not specify what kind of duty of care that was owed by the Bank to the pension fund that the Bank breached. If the Bank was negligent in the manner that it ran its operations, then such negligence was classically negligence in the air.

In the American case of Palsgraf v Long Island RY, Co. (1928) 24 NY 339, aforesaid, a railway employee tried to assist a passenger board a train. The employee negligently knocked down a package in the passenger's arms. The package contained fireworks. This was unknown to the employee. There was a violent explosion. A chain reaction followed. A weighing scale, some considerable distance away, was knocked over by the force of the explosion. As it fell, the scale injured the plaintiff, a woman passenger who intended to board another train. The New York Court of Appeal exonerated the railway company. It held that the conduct of the railway employee might have been a wrong in relation to that passenger from whom the package had been knocked, but not in relation to the plaintiff standing far away.

In the South African case of Workman's Compensation Commissioner v De Villiers 1949 (1) SA 474 (C), the defendant was the driver of a lorry. He drove his lorry into a municipal market. At the entrance, he bumped the door of the market slightly. Unbeknown to him, there was a carpenter who was standing on a ladder that was propped up against the inside of that door. The carpenter was dislodged and injured. It was held that the defendant, the lorry driver, was not liable to the carpenter. The presence of that carpenter behind the door could not have been reasonably foreseeable. The lorry driver might have owed a duty of care to the municipality, but not to the carpenter.

In casu, even if the Bank was somehow negligent in the manner it ran its operations in the branches, there is simply no nexus between such negligence and the misfortunes of the pension fund under the hands of its own employees. Such negligence would not be negligence in relation to the pension fund. In my view, the Bank owed no duty of care to the pension fund.

In addition to the American and South African cases above, the English case of Bourhill v Young [1943] AC 62; [1942] 2 All ER 396 [HL] also helps bring out the concept of duty of care. Admittedly, the facts in all these cases are far different from those of the present case. But the principle is the same.

In Bourhill v Young [1943] AC 62; [1942] 2 All ER 396 [HL], the appellant, a fishwife, was unloading her fish basket from the off-side of a tram. She was pregnant. A motorcyclist, who was travelling at an excessive speed, sped past the tram and crashed into a motor-car several meters away. The cyclist was thrown onto the street. He sustained severe injuries from which he died. The fishwife did not see the accident. However, the sound of the collision gave her such a shock that a month later she suffered a miscarriage. But the House of Lords exonerated the estate of the cyclist. The cyclist might have been negligent in relation to the owner of the car, but not in relation to her.

I am mindful that in the passage in Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1991 (2) ZLR 291 (SC)…, part of which I have quoted above, the learned GUBBAY CJ went on to say this:

“The employer may, of course, be liable on the ground of his negligence in selecting the employee, or because the theft was induced by his own negligence, or because of the negligence of some other employee to whom the charge of the stolen property had been committed.”

Certainly, the Supreme Court did find the supermarket's claim, based on the negligence of the security company, not excipiable, even though it had been pleaded inelegantly.

However, there is still a world of difference with the present case.

In Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1991 (2) ZLR 291 (SC) there was a contractual relationship between the parties. The negligence sought to be pleaded was contractual, not delictual as in the present case. It was the same situation in the English authorities considered by the Supreme Court in that case. A duty of care could arise in contract. In this case there was no contractual relationship, or a relationship of any sort, between the pension fund and the Bank….,.

It seems the failure by the pension fund to specify the statute on which it relied in paragraphs 2.8, 2.9 and 2.10 of its declaration manifestly led counsel of both parties to shoot in the dark. The language used in those paragraphs, and paragraph 2.7 as well, strongly resembled that of the Bank Use Promotion Act [Chapter 24:24], and the Money Laundering and Proceeds of Crime Act [Chapter 9:13].

In his heads of argument, filed in June 2014, counsel for the Bank evidently assumed that the reference to “…, financial crime…,” in the plaintiff's declaration was a reference to one of these Acts. He referred to what he termed “Bank Use Promotion and Suppression of Money Laundering Act,” the old name by which the Bank Use Promotion Act was known before amendment in 2013. Counsel for the Bank went on to quote, in extenso, section 32, as one which created some criminal offences and penalties for a failure by a designated institution to, inter alia, comply with certain disclosure orders.

But, with all due respect to counsel, the whole of Part IV of the Bank Use Promotion Act, comprising sections 23 to 32, that dealt with the suppression of money laundering, was repealed in 2013 by the Money Laundering and Proceeds of Crime Act.

On his part, counsel for the pension fund, referred, in his heads of argument, filed in July 2014, to the “Bank Use and Suppression of Money Laundering Act [Chapter 24:24]” - again the same mistake.

He referred to sections 24 to 28 of that Act and said they placed certain obligations on financial institutions and their employees, inter alia, to verify the identity of their customers; to keep a record of the transactions; to report any suspicious conduct regarding any transaction, et cetera. Evidently, counsel must have meant the Money Laundering and Proceeds of Crime Act. It came into operation on 28 June 2013. It is the one with those provisions counsel alluded to.

The above confusion serves to emphasize the importance of elegance and precision in pleadings. The statutory provisions being relied upon for any cause of action have to be identified.

But, be that as it may, even if it was the pension fund's intention to rely on the Bank Use Promotion Act or the Money Laundering and Proceeds of Crime Act, in my view, it still comes short. Even if it was meant to plead that the Bank breached some of the provisions of those Acts and would therefore be liable to suffer criminal sanction, that breach would still not transform into civil liability to the pension fund. In my view, as with negligence in the air, this would be “criminality in the air” in relation to the pension fund.

The causal link would be absent.

The question of causation, even though formulated by law, is one of fact: Minister of Finance & Ors v Gore NO 2007 (1) SA 111 (SCA). CAMERON JA said in that case…, -

“The time-honoured way of formulating the question is in the form of the 'but for' test. Can it be said that, but for the wrongful act complained of, the loss concerned would not have ensued?”

In the next paragraph, the learned Judge of Appeal, criticising some mathematical and the all-or-nothing approach that seemed to have crept into the test, said:

“Application of the 'but for' test is not based on the mathematics, pure science or philosophy. It is a matter of common sense, based on the practical way in which the ordinary person's mind works against the background of everyday-life experiences.”

Quoting from Minister of Safety and Security v Duivenboden 2002 (6) SA 431 (SCA), (NUGENT JA), he said -

“A plaintiff is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than metaphysics.”

In Minister of Finance & Ors v Gore NO 2007 (1) SA 111 (SCA), both the Central Government and the Provincial Government were held vicariously liable for the corrupt conduct of certain of their employees that had manipulated certain tenders in favour of one of the bidders who had bribed them and with whom they had eventually got employed.

In Commissioner for the South African Revenue Service & Anor v TFN Diamond Cutting Works (Pty) Ltd 2005 (5) SA 113 (SCA), the Collector of Revenue and the Government were held vicariously liable for the theft of diamonds by an employee of the Collector of Revenue to whom the plaintiff had been obliged to entrust those diamonds as he travelled abroad.

In Minister van Veiligheid en Sekuriteit v Japmoco BK h/a Status Motors 2002 (5) SA 649 (SCA), the Government was found liable for the criminal conduct of a policeman who connived with a car thieving syndicate to which he provided false vehicle clearance certificates for a fee which would then be used to register stolen vehicles and sell them.

Although these cases were on vicarious liability…, they are also relevant on the question of causation. In my view, the cases are distinguishable. In them, the loss that befell the victims was the direct and proximate cause of the wrongful actions of the employees.

Not in this case.

The pension fund's loss was caused by the acts of its own employees. That the Bank's employees participated in the storage and distribution of the spoils was not the direct cause of such loss. Therefore, even accepting that the Bank breached the provisions of the aforesaid anti-money laundering statutes in the manner alleged, that would not render it liable to the pension fund. On the facts, as pleaded, it was the pension fund pair that supplied the details of the pensioners in whose names the accounts with the Bank would be opened. It was the pension fund pair that hived off the money from the pension fund pool and transmitted it to the Bank. It was the pension fund pair that withdrew the proceeds - albeit with the facilitation of the Bank pair.

I do not see how any breach of the provisions of the statutes in the manner alleged would be a wrong in relation to the pension fund. In other words, it cannot be said that but for the actions of the Bank pair the pension fund pair would not have stolen from their employer.

Counsel for the pension fund argued that it would be premature, at this stage, to shut out the pension fund's claim against the Bank when evidence at the trial might well establish the complaint and the Bank's culpability. Among other things, he said that whether or not the obligations imposed in terms of the Acts were met was a matter of evidence. Upholding the exception would be tantamount to deciding the matter on speculation.

What then is an exception, and what is its purpose?

(c) Exception and its purpose

An exception is a legal objection to a pleading. It complains of a defect inherent in the pleading: H J ERASMUS, Superior Court Practice…,.

For the purposes of an exception, the facts pleaded must be accepted as correct: Marney v Watson & Another 1978 (4) SA 140…,.

The main purpose of an exception is to obtain a speedy decision upon a point of law apparent on the face of the pleading attacked so as to settle the dispute in the most economical manner by having the faulty pleading set aside: City of Harare v D & P Investments (Pvt) Ltd & Anor 1992 (2) ZLR 254 (S)…,.

In Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A) and Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A), it was accepted that the main purpose of an exception that a declaration does not disclose a cause of action is to avoid the leading of unnecessary evidence at the trial.

In McKelvey v Cowan NO 1980 (4) SA 525 (Z), it was held that in dealing with matters of exception, if evidence can be led which can disclose a cause of action alleged in the pleadings, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action.

Cause of action, as per SMITH J in Dube v Banana 1998 (2) ZLR (HC)…, means the combination of facts that are material for the plaintiff to prove in order to succeed in his action. The facts must enable the court to reach a conclusion regarding unlawfulness, fault and damages: see also Controller of Customs v Guiffre 1971 (2) SA 81 (R)…, and Patel v Controller of Customs & Excise 1982 (2) ZLR 82 (H)…,.

As I have already demonstrated, evidence that the Bank might have breached the statutory provisions alluded to would still not establish the pension fund's claim as against the Bank. It will be irrelevant.

In my conclusion, the pension fund's declaration, in its entirety, does not disclose a cause of action against the Bank. There is simply nothing that the evidence on any aspect of the claim, as pleaded, if led, will establish the claim. There was no vicarious liability on the part of the Bank on the facts pleaded. There was also no wrongful action on the part of the Bank in relation to the pension fund.

DISPOSITION

In the circumstances, the exception is upheld. The plaintiff's claim against the fifth defendant is hereby dismissed with costs.

Section 248 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]…., provides as follows-;

“248 Consent to medical treatment for non-therapeutic purposes

(1) In this section -

“patient” means a person to whom medical treatment is given or upon whom a medical operation is performed;

“qualified person”, in relation to any medical treatment or operation, means a person who, by virtue of his or her qualifications or training, is, in all the circumstances, qualified to give the medical treatment or perform the medical operation.

(2) Where a qualified person, with the consent of the patient concerned, gives any medical treatment to or performs any medical operation upon a patient -

(a) Otherwise than to cure or alleviate any disease or disability; or

(b) In order to sterilise the patient;

such consent or authority shall be a complete defence to a charge of murder or assault arising out of that treatment or operation if -

(i) The consent complies with paragraphs (b), (c) and (d) of subsection (1) of section two hundred and forty-five; and

(ii) The treatment or operation is carried out competently in accordance with recognised medical procedures; and

(iii) In a case where the treatment consists of the administration of any new, untried or experimental drug, medicine or allied substance, such treatment is conducted pursuant to and in accordance with the procedures prescribed for the clinical trial of a medicine under Part III of the Medicines and Allied Substances Control Act [Chapter 15:03].”…,.

The question of causation is discussed by the learned author, JONATHAN BURCHELL, in his book Principles of Criminal Law 5^th Edition 2016....,. The learned author deals with the need for a causal link between the act alleged or omission and the ultimate unlawful consequence. These are both factual and legal issues. Put differently, the act or omission complained of against an accused person should create a causal link or connection to the now deceased's death. There must not be an intervening act or event which serves to break the chain of causation.

In this matter we are unable to say with certainty what caused the now deceased's death. In fact, it has not been proved that the now deceased had his head bashed against a rock on 10 November 2015 and that he sustained injuries leading to his death seven days later, on 17 November 2015, at Parirenyatwa Hospital. Was there any intervening act or event from 10 November 2015 to 17 November 2015, a novus actus (or nova causa) interveniens? Further, it has been shown that the now deceased suffered from other ailments like diabetes and high blood pressure.

The plaintiff is a resettled farmer carrying out farming activities on Subdivision 1 of Eastworlds in Mazoe District. Such farm was offered to him on 21 February 2002 under the Government Resettlement Programme.

On the farm is a 12 hectare lemon plantation under irrigation. There is a ZESA power line which passes through the lemon plantation. On 25 September 2011 fire broke out on the plaintiff's farm destroying the lemon plantation. The plaintiff attributed such fire due to the negligence of the defendant prompting him to file this claim.

The plaintiff's claim is in the sum of $238,253= for damages suffered as a result of the defendant's negligence.

It is the plaintiff's claim that the defendant created a dangerous situation on his farm and the defendant had a duty of care towards the plaintiff and his property and was negligent in failing to protect the plaintiff's property from such harm.

The defendant denied liability for the destruction of the plaintiff's plantation and irrigation equipment. The defendant denied the conductor snapped due to any negligence by the defendant. Alternatively, the defendant pleaded contributory negligence by the plaintiff. The defendant also put into issue the quantum of damages suffered by the plaintiff.

The plaintiff called four witnesses to testify on his behalf. Of the four only his caretaker was present on the day in question.

His caretaker, Collen Chadzika, testified that he was relaxing at his home on the farm when he heard sounds of snapping conductor coming from the power line which cut across the lemon plantation. He proceeded to the scene and observed that the lemon plantation was on fire. He observed some power cables which had fallen on the ground and were bursting and twisting inside the plantation igniting the mulching grass therein. When he got to the scene an area the size of a football pitch had already been destroyed by fire. The fire continued to spread across the plantation. Some people from the farm compound followed him and they, together with Collen, tried to extinguish the fire to no avail. He phoned the plaintiff and advised him of the situation. He was advised to make a report at the police station. He proceeded to the police station and made the report.

Under cross-examination, he stuck to his story that it was the ZESA cables that ignited the fire. He was however not very helpful on shedding light on what could have caused the snapping of the defendant's conductors. He however confirmed that a month earlier a tree had fallen onto the defendant's powerline causing the breaking of the defendant's conductor. The defendant's technician attended to the fault and joined the conductor.

The plaintiff testified that on the day in question he received a telephone call from his caretaker that the defendant's conductor had snapped and caused a fire that was burning his lemon plantation. He advised Colen Chadzika to make a report to the police and the defendant. The plaintiff contacted the defendant's Mvurwi office but was advised a team had already been dispatched to the scene. On 26 September the plaintiff proceeded to the farm where he observed that his 12 hectare lemon plantation had been completely destroyed by the fire. The irrigation equipment which serviced the plantation was also destroyed. He observed that the fire started from within the plantation. It was his testimony that the plantation was surrounded by a 9 metre fireguard which made it impossible for the fire to have crossed into the plantation from elsewhere.

The plaintiff engaged the Environmental Management Authority which referred him to the Forestry Commission. An official from the Forestry Commission attended on the farm and compiled a report on the extent of the damages. He also brought in Mighty Flow Irrigation Company which produced a report on the cost of replacing the irrigation equipment.

The plaintiff testified that an official of the defendant, who was the manager at Mvurwi, admitted liability and requested him to file a claim for compensation. Such claim was filed and nothing materialised….,.

The defendant called two witnesses to testify on its behalf. Ozwell Kubvoruno testified that he is employed by the defendant as an artisan and is based at Mvurwi. He attended at the plaintiff's farm on the day that fire broke out. They had received a report that their conductor had broken causing a fire which burnt the plaintiff's fields. He had no reason to disbelieve the report.

On arrival, there was indeed a conductor lying across the road next to the plaintiff's lemon plantation. He also observed that the citrus trees were burning. He also observed burnt piles of cut cyprus trees. This witness testified that he did not investigate the cause of the fire but it was his testimony that a conductor could break due to various causes, amongst them veld fires, being hit by lightining, and trees falling onto the lines. It was also his testimony that should a person require to cut trees which may interfere with the defendant's power lines, it was the duty of such person to liase with the defendant beforehand. The defendant would, on that day, switch off the line and drop conductors to ensure safety of the public and their powerlines. According to his knowledge the plaintiff had never requested for such authority. He had heard a month before, from his boss, Mrs Masaira, that the plaintiff had cut a tree which had fallen onto the defendant's 11kv line causing one of the conductors to break.

Mrs Masaira attended to that fault and fixed the conductor.

A tree which was being cut by the plaintiff's workers fell on the powerline causing the conductor to break. It was the same conductor which snapped and broke on 25 September 2011. However, Mr Kubvoruno observed that the fixed part of the conductor was intact.

That evidence destroyed the weak link issue. The question of weak link would have sufficed had the conductor snapped from the mended part.

Mrs Masaira testified that the cause of the fire was not established. Veld fires could cause the snapping of conductors and so do lightining or contact with the ground. The snapping of the conductor could have been caused by any of the above factors. She denied that she had accepted liability on behalf of the defendant, testifying, instead, that the plaintiff approached her and indicated his intention to lodge a claim for compensation to the defendant for his destroyed citrus plantation. She advised the plaintiff to submit his claim for onward transmission to the Bindura office for consideration. The plaintiff did so.

Under cross-examination she said she accompanied her boss, Mr Mafoko, to the plaintiff's farm after the plaintiff lodged the claim. She did not know what transpired thereafter. She agreed that when she mended the conductor, the first time, a weak point was created but the repairs she carried out are acceptable in the field.

From the analysis of the evidence presented there is no doubt that the fire was caused by a broken conductor. What is not clear is what caused the conductor to break.

All the witnesses got to the scene when the conductor was already on the ground and when the plantation was on fire. There were no eye witnesses who observed where and how the fire started. It is also common cause that the lemon plantation was burnt and that the lemon plantation was under 12 hectares. Some irrigation equipment was also burnt in the process.

It is also not in dispute that a month earlier a tree had fallen on to the defendant's powerline. The plaintiff opined that such tree was as a result of being blown by wind whereas the defendant insisted the plaintiff's employees were cutting trees and one of the trees fell onto the power line causing the conductor to snap.

For purposes of this case it is not crucial to determine what caused the tree to fall. The relevance of this evidence is on whether the defendant negligently repaired the conductor on the day in question and whether, ultimately, such repairs contributed to what caused the snapping of the conductor on 25 September 2011.

It was the plaintiff's evidence that the defendant, by joining the conductor, created a weak link on the conductor posing future dangers to his property.

The defendant called in two of its technicians who testified that, scientifically, the joining of the conductors was an accepted method of repairs to a broken conductor. It was also the testimony of one of the defendant's witnesses that, on inspecting the conductor on 25 September 2011, the joined part was intact.

Such finding destroyed the probability that the joining of the conductor created a weak link.

There was therefore no evidence that the conductor snapped due to the method of repair effected by the defendant a month earlier. The plaintiff could not prove that without calling expert evidence.

In the case of Metallon Corp Ltd v Stanmarker Mining (Pvt) Ltd 2007 (1) ZLR 298 (S) the court laid down what the plaintiff must establish in an aquilian action for patrimonial loss, that is:

“(i) That the defendant committed a wrongful act;

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

(iii) The defendant's act caused the loss suffered by the plaintiff and that the harm occasioned was not too remote from the act complained of;

(iv) The responsibility for the plaintiff's loss is imputable to the fault of the defendant, either in the form of dolus (intention) or culpa negligence).”

The plaintiff has not shown any wrongful act committed by the defendant. The mere fact that the defendant's powerline pass through the plaintiff's plantation is not per se a wrongful act. From the evidence there is no negligence through an act.

I turn to deal with the issue of negligence by omission.

The plaintiff must give evidence on what it is that the defendant was supposed to do and failed to do resulting in the loss suffered by the plaintiff.

I agree with the plaintiff's submission that in general terms there is no dialectical liability for an omission unless the law recognises, from the circumstances, that there was a legal duty to take positive action to prevent harm from occurring. See Minister of Police v Ewels 1975 (3) SA 759 A. The questions to be answered are;

(1) Whether harm was reasonably foreseeable; and

(2) Whether a reasonable person would have taken action to prevent such harm from occurring.

The plaintiff's argument is that by simply having its power line cutting across the plaintiff's lemon citrus and farm in general, the defendant created a source of danger to the plaintiff's property and the defendant assumed a duty to prevent any such harm from occurring.

What this court fails to understand is how the plaintiff could maintain a lemon plantation directly under electrical powerlines.

The general policy the world over is that trees are not to be allowed to grow under power lines as that poses dangers when such trees come into contact with the fully charged power-lines.

However, I do not intend to waste time on this subject as there is no evidence that a tree came into contact with the defendant's powerline causing the conductor to snap and thus causing a fire. If the facts were such, I would not have hesitated to find the defendant negligent. So the argument by the plaintiff does not take his matter any further.

In my opinion, it would be going too far to say so much care was required between the plaintiff and the defendant where, as is in this case, the power line is generally not dangerous, but may become dangerous by a latent defect entirely unknown to the defendant, even though it may be discoverable by the exercise of ordinary care, the defendant should be answerable to the latter for a subsequent damage arising from the unknown latent defect.

This is a matter where courts should try and avoid overkill.

If this court were to find that the repairs made on the conductor, as submitted by the plaintiff, caused a weak link which created a dangerous situation and resultantly caused damages to the plaintiff, the court might create a scenario where the defendant would simply stop effecting such repairs and thus causing severe suffering to the public at large. It is common cause that should it be expected that each time a conductor snaps, the defendant should replace it with a new one, an untenable situation would result. It is not in the public interest, especially where no expert evidence was led to show that the sort of repairs done earlier on indeed created a hazard which caused fire on the day in question, to find the defendant liable. The plaintiff failed to prove the defendant's liability in the absence of such expert evidence.

It is trite that to hold the defendant liable in these circumstances, where there is no proof of negligence, is tantamount to making the defendant the plaintiff's insurer.

The standard of care should not be pitched too high. To allow liability in the present case, to me, would be tantamount to pitching the standard of care too high….,.

Accordingly the claim fails in its entirety and is dismissed with no order as to costs.

The plaintiff was a passenger aboard Flight UM14176 from Harare to London on 9 September 1997. He had luggage. The defendant airline was to convey the luggage together with the plaintiff to London.

When the plaintiff got to London he failed to get his luggage. It was lost. The plaintiff accepted payment of $4,694=28 from the defendant. He sued for UK£3,068= and Z$368,550= for the lost luggage and loss of earnings.

At the pre-trial conference stage it was agreed that the following question be placed before the Court as a Stated Case;

1. Is the contract between the parties governed by the Carriage by Air Act [Chapter 13:04]?

In his heads of argument, counsel for the plaintiff argued that in terms of section 7(2) of the Carriage by Air Act [Chapter 13:04], the Court has a discretion when adjudicating in claims brought to enforce liability which is limited by Article 22 of the Geneva Convention. The limitation imposed by Article 22 of the Convention is a guide but not a strict limitation as such a limitation is qualified by the use of the words "just and equitable" in subsection (2). So he argued.

There is no substance in this argument. It is clearly misplaced and misdirected.

To begin with, the use of the words "just and equitable" in section 7(2) of the Carriage by Air Act are restricted to the procedural options open to a Court where there is a possibility of a carrier facing a multiplicity of suits, either in Zimbabwe or elsewhere.

Secondly, the Carriage by Air Act itself is clear and unambiguous in its limitation of liability. Section 7(1) of the Carriage by Air Act states:

"It is hereby declared that the limitations on liability in Article 22 of the Convention apply whatever the nature of the proceedings by which liability may be enforced and that in particular -

(a) Those limitations apply where proceedings are brought by a wrongdoer to obtain a contribution from another wrongdoer; and

(b) The limitation for each passenger in paragraph (1) of that Article applies to the aggregate liability of the carrier in all proceedings which may be brought against him in Zimbabwe together with any proceedings brought against him outside Zimbabwe."

For the defendant, counsel argued that the golden rule of interpretation, which is that a court is bound to give effect to the express provisions of a statute, must be applied unless that leads to its ambiguity. It would lead to an absurdity if that same provision were to be read as implying that where justice and equity required it, a Court could make an award greater than the limitation allowed.

I agree.

A perusal of the Carriage by Air Act is revealing. The preamble of the Carriage by Air Act reads;

"An Act to enable effect to be given to the Warsaw Convention of 1929, as amended by the Hague Protocol of 1955 concerning international carriage by air…,."

By section 3 of the Carriage by Air Act, the Warsaw Convention was adopted as domestic law of Zimbabwe. The purpose of the Convention, among other things, is to limit the liability of air carriers. Article 22 expressly limits the liability of a carrier by air. It is unequivocal.

The plaintiff did not argue otherwise.

In terms of Article 22, the only circumstance where a carrier by air is liable to a higher limit is, whereby special contract, that carrier has agreed to be so bound.

The plaintiff has not alleged the existence of any such special contract. There would be little purpose served by this Act if it were possible to claim an amount higher than the prescribed limit. This is an international Convention. Zimbabwe is a signatory to it. Zimbabwe is obliged to apply the letter and spirit of the Convention.

In the circumstances, the answer to the Stated Case is that the contract between the parties is governed by the 1929 Warsaw Convention as amended by the Hague Protocol of 1944 as adopted into domestic law by the Carriage by Air Act [Chapter 13:04].

It is ordered that -

The plaintiff is to pay the costs of this application.

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage.

The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who are parents to the minor children, alleged that they had entered into a contract with the defendant on the following agreed terms;

1. That the two minor children would be escorted onto the flight and off the flight;

2. That they would be monitored and assisted throughout the flight;

3. That they would be cared for on the plane;

4. That they would be taken through immigration and handed over to a designated person, namely, Haruchemwi Christine Masuta;

5. That their documents would be kept safely by the airline staff who would hand-over same to Hamuchemwi C Masuku; and

6. That Hamuchemwi C Masuku would sign documents acknowledging receiving the minor children.

The plaintiffs alleged that, in breach of the terms of the contract, the minors were not taken care of nor provided any assistance. Instead, a stranger who happened to be a passenger on the plane was asked to assist the children. The plaintiffs alleged that, as a result, they suffered psychological trauma, pain and suffering and claimed $75,000= damages in respect of the first and second plaintiffs and $100,000= damages in respect of the third and fourth plaintiffs.

The defendant excepted to the summons and declaration on the following grounds;

(1) That since the carriage by air of the first and second plaintiffs from Harare to Johannesburg constituted an international carriage within the meaning of Article 1(2) of the Convention for Unification of Certain Rules relating to International Carriage by Air (Warsaw Convention) as ratified by section 3 of the Carriage by Air Act [Chapter 13:04], the cause of action should be premised on the Warsaw Convention.

(2) That the plaintiffs cause of action, being founded on the defendant's alleged breach of contract, cannot be sustained at law; and

(3) That the claims of the Carriage by Air Act and Warsaw Convention, being limited to instances of death or wounding of a passenger or any other bodily injury by a passenger, and the plaintiffs not having pleaded the essential elements, their claim is incurably bad at law.

The defendant prayed for dismissal of the plaintiffs claim with costs of suit on an attorney client scale.

I am indebted to the parties for the detailed heads of argument filed.

The defendant argued that claims arising out of air travel are specifically governed by the Warsaw Convention. Any claims should fall squarely within the four corners of the Warsaw Convention. Any claims falling outside the Warsaw Convention could not be sustained. Since the plaintiffs claims arose from a breach of contract, and, possibly, delict, their claims ought to be dismissed.

The plaintiffs, on the other hand, argued that the Warsaw Convention does not provide the “sole and exclusive” remedies to claims arising from carriage by air. The Convention, as it stands, does not specifically ouster claims arising under common law. In any case, the plaintiffs submitted that Article 17 of the Warsaw Convention does incorporate psychological trauma and distress. In case it is found that Article 17 is applicable, the plaintiffs argued that Article 17 is an archaic piece of legislation which is not justifiable in a dynamic and democratic legal system such as ours.

The first issue falling for determination is whether the Warsaw Convention provides the exclusive remedy to claims arising from carriage by air.

Article 1(1) of the Warsaw Convention provides;

“For the purposes of this Convention, the expression 'international carriage' means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a breath in the carriage or a trans-shipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for purposes of this carriage.”

The Warsaw Convention was ratified by section 3 of the Carriage By Air Act [Chapter 13:04]. That means that where there is conflict between the Warsaw Convention and common law, the Warsaw Convention should prevail and apply.

In the case of Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC) LORD HOPE stated that:

“The Convention describes itself as a 'Convention for the Unification of Certain Rules relating to International Carriage by Air'.

The aim of the Convention is to unify the rules to which it applies. If this aim is to be achieved, exceptions to these rules should not be permitted, except where the Convention itself provides for them. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code which could be applied by the courts…, without reference to the rules of their own domestic law.

The Convention does not purport to deal with all matter relating to contract of international carriage of law. But, in those areas with which it deals, and the liability of the carrier is one of them, the Code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.”

See also Eastern Airlines Inc v Floyd 499 US 530 (1999) where the United States Supreme Court held that an air carrier could not be held liable under Article 17 when an accident had not caused the passenger's death or to suffer physical injury or any physical manifestation of injury.

LORD HOPE, in Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC), went further to say;

“…,. To permit exceptions whereby a passenger could sue out with the Convention for losses sustained in the course of intentional carriage by air would distort the whole system, even in case in which the Convention did not create any liability on the part of the carrier. Thus, the purpose is to ensure that in all questions relating to the carriers liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available in any particular country where he chooses to raise his action.”

In the case of Impala Platinum Limited v Kolinklijke Lunchtraat Maatshappij NV and Another 2008 (6) SA 600 the court found that exceptions should not be allowed unless where the Convention itself provides for those exceptions.

From the law cited above, and case law, it is clear that claims arising out of carriage by air, are exclusively governed by the Warsaw Convention. Where the Convention provides no remedy it follows there is no remedy. The reason is so as to achieve a uniform application of air carriage laws without resorting to domestic law. It is therefore trite that the cause of action should be premised on the Warsaw Convention.

Having found the above, it is clear or apparent that the plaintiffs cause of action, having been founded on an alleged breach of contract and delict, cannot be sustained at law. See El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US155 (1999).

It is also trite that in terms of the Carriage By Air Act [Chapter 13:04], and the Warsaw Convention, claims are limited to instances of death or wounding of a passenger or any other bodily injury suffered by the passengers.

In the case of Morris v KLM Royal Dutch Airlines, King v Brishow Helicopters Ltd (2002) Z ALL ER 565 (HL) the court had the opportunity to consider the meaning of 'bodily injury' as provided for under Article 17 of the Warsaw Convention. It was held that such expression did not cover “a mental injury or illness that lacked a physical cause.”

See also Portgieter v British Airways/l 2005 (3) SA 133 (C) where a claim for negligently causing psychological shock to a passenger by an employee was dismissed.

Article 17 of the Warsaw Convention provides as follows;

“The carrier is liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage took place onboard the aircraft or in the course of any of the operations of embarking or disembarking.”

From a reading of the above, it seems that only physical injury is recoverable under Article 17.

It has been established that purely psychological injury is not sufficient in order to recover under the Warsaw Convention. Once an injury is psychological in nature, it is not recoverable.

In the matter in casu, the plaintiffs have not pleaded that they suffered physical injury leading to psychological injury. It is my view, therefore, that the plaintiffs claim falls outside the purview of the Warsaw Convention. The Warsaw Convention was designed to protect carriers from opportunistic claims as the one in casu.

I am of the view that the exception has been well taken and is upheld…,.

Accordingly I order as follows;

1. The exception be and is hereby upheld.

The standard of proof in civil proceedings is proof on a balance of probabilities.

What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff's claim against the defendant's defence. It necessitates a decision of which of their versions of events is more likely to be true. In other words, which version is more believable, or most likely to have transpired, than the other?

It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's, or vice versa. In making this determination, we look at the pleadings, at the documentary evidence, at what the parties' representatives said and did when they were in the witness stand, and, finally, at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.

The plaintiff issued summons against the defendant on 24 March 2014 in which it claimed payment of USD$48,000= being the replacement value of soya beans that were lost while in the defendant's custody, interest at the prescribed rate, and costs of suit.

The defendant denied entering into any agreement with the plaintiff for the transportation of soya beans. It admitted that the parties entered into an agreement for the transportation of seed maize which agreement was mutually terminated by the parties.

The matter was referred to trial for the determination of the nature of the agreement between the parties; whether such agreement was terminated; whether the defendant gave instructions for the loading of a truck with soya beans; and, consequently, whether the defendant is liable for the loss suffered by the plaintiff of thirty tonnes of soya beans valued at USD48,000=.

It is common cause that the parties signed a 'Load Confirmation and Rate Agreement' on the 28^th of November 2011 in terms of which the defendant agreed to bear the risk for any loss or damage to the goods carried by it and indemnified the plaintiff against any claims.

The parties agreed that any changes to the contract would be reduced to writing and that the defendant could not subcontract without the express written consent of the plaintiff. It was a term of the contract that collection of the load was confirmation, by the defendant, of the terms and conditions of the parties' contract.

It is common cause that a load of soya beans, as opposed to seed maize, was loaded onto a thirty tonne truck on behalf of the plaintiff. It is common cause that the truck which accepted the plaintiff's load went missing and that the representative of the defendant assisted the plaintiff's representative to search for the truck.

(i) Was the agreement between the parties mutually terminated?

(ii) Was the truck that loaded soya beans a truck which had been sub-contracted by the defendant with the plaintiffs express consent - written or otherwise?

(iii) Did the truck load thirty tonnes of soya beans valued at USD$48,000=, or less or more, or maize seed instead of soya beans?

(iv) When the defendant's representative offered to and did assist the plaintiff's representative to look for the misappropriated truck, was this an acceptance of liability on the part of the defendant?

The contemplation of the possible answers to these questions will assist the court to assess the probabilities in this case and to decide which of the parties' versions is supported by the preponderance of probabilities.

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but, if the probabilities are equal it is not.”

See Milner v Minister of Pensions 1947 2 All ER 372…, and Thulisani Dube Nyamambi v Bongani Ncube HB82-15.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC) the court said that:

“…,. In a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

The learned authors, HOFFMAN & ZEFFERTT, in their book, SA Law of Evidence 4ed…, state that;

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.''

In JOUBERT, The Law of South Africa, Vol 9…, the learned author says that:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.''

Accordingly, we must balance the plaintiff's claim against the defendant's defence, and, in so doing, decide which of their versions is more likely to be true. In other words, which version is more believable or most likely to have transpired than the other.

The preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's. In making this decision we look at the pleadings, at the documentary evidence, and at what the parties' representatives said.

The evidence shows that the parties willy-nilly and haphazardly changed the terms of their contract verbally, and not in writing. This makes it difficult to assess whether the defendant is being candid when it says that the contract was 'mutually' terminated verbally. It is equally difficult to assess whether indeed the defendant sub-contacted to a third company as alleged by the plaintiff because neither the plaintiff's consent to such a course of action, nor the alleged sub contract itself, is in writing.

This case boils down to a question of the plaintiff's word against the defendant's.

The probabilities are evenly balanced. Unfortunately, in order for the plaintiff to win its case, the preponderance of probabilities must be tilted in its favor.

In this case they are not.

The evidence does not show that the defendant had a hand in giving loading instructions to Seed Co. The evidence shows that it was the plaintiff which faxed loading instructions to Seed Co. A copy of this fax would have assisted the court to determine who gave the instruction, which company was authorised to load, the registration number of the truck, the name of its driver and his identity number.

The plaintiff said that this information was supplied to it by the defendant. It may very well have been. There is insufficient evidence that the defendant supplied this information to the plaintiff pursuant to a subcontract. The terms of the sub-contract were not made clear to the court. There is insufficient evidence, in the absence of the loading instructions, as to the nature of the goods which were loaded onto the truck in question.

Was it soya beans or maize seed? Was it thirty tonnes or less, or more?

It is anybody's guess because there was no evidence placed before the court on which it can base any findings in answer to those questions. It is highly probable that the defendant's version is correct, that, as a player in the transport industry, the defendant referred the plaintiff to another transporter when it was unable to load the plaintiff's goods. If the defendant was unable to load the plaintiff's goods, then, in terms of the plaintiff's own contract, the defendant was not bound by the terms of the contract and not liable to indemnify the plaintiff against loss or damage.

There is no evidence that, even if it were found that the defendant was authorized, verbally, by the plaintiff to sub contract, the terms of the plaintiff and the defendant's initial contract would also be binding on the defendant as a subcontractor. No contract between the defendant and the third party was alluded to, produced, or had its terms, if they were verbal, placed before us.

We come to the inescapable conclusion that the plaintiff did not manage to discharge the onus on it to prove its case on a preponderance of probabilities.

It is more probable that the plaintiff was the victim of fraud, and that, because the alleged fraudsters were referred to it by the defendant's representatives, the plaintiff wishes to hold the defendant to account. The plaintiff cannot do so on the basis of the evidence which it placed before the court. The cause of action is not founded. The evidence before the court is inadequate, and insufficient, to tilt the probabilities in the plaintiff's favor.

For these reasons, the plaintiff's claim is dismissed with costs.

At the close of the plaintiff's case the defendant swiftly moved to make an application for absolution from the instance.

What runs through the plaintiff's declaration is the allegation that the defendant lacked due diligence and care in the manufacturing of its product to the extent that the product itself is not safe, clean, healthy and fit for human consumption.

The plaintiff testified himself and called two more witnesses one of whom testified to corroborate the plaintiff's evidence that he had partaken of contaminated coke. That the plaintiff drank coke which was not safe for human consumption could not have been successfully challenged by the defendant as none of its representatives were present when the partaking took place. The thrust of the defendant's defence, as demonstrated by the cross-examination, was the source of the drink in question.

The second witness called by the plaintiff alleged he was also a victim of contaminated coke on an entirely different occasion, and, in the court's view, his unsolicitated testimony tendered to corroborate the plaintiff's contention that all was not well in the defendant's manufacturing of the product in question.

Exhibits 8 and 9 which were produced by the plaintiff again tended to show that there were some foreign substances in the defendant's coke and this appeared, in the eyes and mind of the court, to show that there was something amiss with the defendant's product.

The plaintiff testified that as a result of drinking the contaminated coke he ended up incurring medical expenses some of which even the defendant's counsel was unable to challenge at the time he made an application for absolution from the instance.

It appeared the defendant's counsel's position was that the plaintiff ought to have used the defendant's testing facilities at the defendant's place if he felt there was something wrong with the coke that he drank.

I was not persuaded to accept this argument.

In fact, it raises quite an interesting debate for one to argue that it would have been reasonably expected for the plaintiff, being a victim of the alleged negligence of the defendant, to make use of the defendant's facilities to either confirm or exonerate the defendant's alleged lack of care and due diligence.

The plaintiff alleged, in his declaration, that he had suffered general damages in the sum of US$20,000= for distress and anxiety. The defendant's counsel argued that in acquilian action distress and anxiety are not recognisable.

This obviously is a legal issue which both the plaintiff and the defendant would have to deal with when all the evidence in this case (including the defendant's) have been gathered.

Authorities are agreed on the test to be applied in deciding an application for absolution from the instance. GUBBAY CJ eloquently laid down the legal position in the following:

“A plaintiff will successfully withstand such an application, if, at the close of his case there is evidence which a court, directing its mind reasonably to such evidence could or might (not should or ought to) find for him. See Supreme SVC Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR (A) at SD–E; Lowrence vs Ragar Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158/B – E.”

United Air Charterns v Jarman 1994 (2) ZLR 341 (S)…,.

Could or might the court in the instant case find for the plaintiff?

In the court's view, the answer must be in the affirmative. The totality of the pieces of evidence put together by the plaintiff appear to me to establish a prima facie case of negligence on the part of the defendant. The defendant must not be denied the opportunity to explain its manufacturing process to the court by this application for absolution from the instance.

In both cases, Delta Operations (Private) Limited t/a National Breweries v Charles Maraura SC106-99 and Seliphias Musiyiwa v Delta Corporations Limited t/a United Bottlers HH64-04 cited by counsel for the defendant, the enquiry was allowed to run its full course and the court was only able to make a proper determination after assessing the defendant's evidence together with that of the plaintiff. It is clear to me that in both cases the courts made a specific finding that there was a likelihood or probability of interference with the defendant's process after the product had left the production and distribution line on its way to the retailer.

These findings were not made as a result of conjencture but followed a thorough analysis of the evidence placed before the court by both parties. I am unable to speculate on such finding at this stage. The defendant must give evidence to rebut the plaintiff's allegations which have been reasonably corroborated by the witnesses who testified.

Consequently, the application for absolution from the instance is dismissed with costs in the cause.

The defendant, Steward Bank, applies for absolution from the instance at the close of the plaintiff's case in matter founded on damages for breach of contract.

The plaintiff is Mucal Investments. In its summons it seeks payment of US$553,544=42 by the defendant. The amount is sought as damages for loss of business between January and July 2013 resulting from the plaintiff's bank account having been frozen by the defendant under circumstances which will be elaborated. Interest is also sought at the prescribed rate from the date of the summons to date of full payment. In addition, costs of suit are further sought as between attorney and client.

The damages are founded on the allegation that it was a tacit term of the agreement between the parties that the defendant would honour all cheques and negotiable instruments and transfers properly drawn.

The plaintiff, which was then engaged in the business of supplying vegetarian products states through its Director, Lion Chirove, that it could not access its account to effect business payments despite demands being made to the defendant and a court order having been obtained.

The plaintiff company was founded in 2006 and its Directors were then Avila Zvenyika and Lion Chirove. In May 2010, two brothers, Bruce Smith and Ahmad Smith, who had joined them in a business partnership, were made directors of the company. As explained in a “to whom it may concern letter” written in October 2010, being non-Zimbabweans and in the absence of a valid work or residence permit, the new partners could not sign on any Bank account. The letter explained that they had been temporarily removed from the company's CR14 form but that they were, in essence, still directors pending regularisation of their permits.

In September 2011, the plaintiff moved its banking account from CBZ to the defendant Bank.

At the time of opening the account its signatories were Lion Chirove and Avila Zvenyika. Mr Bruce Smith was however made a signatory in place of Mr Lion Chirove in a letter to the Bank dated 30 April 2012. It advised that a Board meeting had resolved to appoint him together with A Zvenyika. However, on 19 November 2012, following a dispute with the Smith brothers, Avila Zvenyika, the company's administrator, had written to instruct the Bank not to process any transactions unless it was authorised by the two Directors as captured on the CR14 form, namely, herself and Lion Chirove.

From the plaintiff's testimony, what flamed the dispute emanated from the fact that the Smith brothers had clandestinely registered a company in South Africa giving themselves a 100 percent shareholding when the agreement had been to go 50-50 with Mucal Enterprises. They had also registered a company in Zimbabwe giving themselves a 70 percent shareholding and the plaintiff and its director 30 percent. The dispute fully ignited when the Smith brothers proposed that a shareholder's agreement be signed between Mucal Investments and the two brothers as a separate agreement. Under the agreement, Mucal Enterprises would be owned by the Smith brothers in their South African company. The plaintiff's directors, Lion Chirove and Avila Zvenyika perceived this move as designed to swallow and push it out of business.

It was then that the instructions were given to the Bank regarding the change of signatories whereby Mr Chirove was reinstated as signatory in place of Mr Bruce Smith.

He further testified that on 21 January, when he tried to effect telegraphic transfers for the sum of R98,000= to a South African supplier (Fry Group), the defendant refused to honour the transaction, and, instead, froze the account. However, it emerged, in cross examination, that the reason why the Bank froze the account was that it had received instructions from Mr Bruce Smith that he had been improperly removed as a director and signatory.

The plaintiff's position is that the internal dispute was none of the Bank's business and that it was its responsibility to abide by the instructions of the directors as captured on the CR14 form. This showed the two directors as himself and his wife Avila Zvenyika.

Out of an abundance of caution, the defendant, on the other hand, had frozen the account until the dispute had been solved. At the time, the plaintiff held $24,797=35 in its account as per bank statement presented as Exhibit S.

That the dispute also set off a chain of events is not denied. Nonetheless, the plaintiff's position is that had the Bank risen above the dispute in light of its contractual obligations to its “true” client, none of the losses subsequently suffered would have occurred.

The chain of events is crucial to grasp as it places crucial variables to the otherwise linear causation of losses suffered as articulated by the plaintiff. The events were as follows:

1. On 23 January 2013 the Bank refused to effect the transactions following the representations made to it by Mr Bruce Smith that he had been improperly removed as signatory.

2. On 6 February 2013 a provisional order was sought by the plaintiff against the defendant in which it sought interim relief compelling the Bank to make accessible to “applicants directors” funds held under account 60101051739101 and to allow the free and unfettered transaction and operation by the applicant of its bank account. The provisional order was granted by consent of all parties. The final order sought to declare Lion Chirove and Avila Zvenyika as having the sole and exclusive right to transact under the relevant account.

Meanwhile, on this very same date, as the above order was being granted, the Registrar of Companies wrote to Mrs Zvenyika stating that they had received a complaint of fraudulent activities concerning removal of two directors (the Smith Brothers) without their knowledge and consent. She was asked, as company secretary, to clarify the position.

Criminal proceedings were also pending in the Magistrate's Court against the plaintiff's director, Lion Chirove, for fraud.

3. On 14 February 2013 the Smith brothers applied for an interdict, under HC882/13, to prevent Lion Chirove and Avila Zvenyika from accessing the account. The plaintiff's testimony was that this order was not granted as the court took the position that it was not possible to interdict an order granted by consent. Under cross examination it emerged that the crucial reason was also to provide the plaintiff a chance to seek for a final order articulating the rightful directors since what had been granted was simply a provisional order authorising “directors” to access the account.

4. On 11 March 2013 one Martha Chakanyuka, a Principal examiner in control of companies, signed a statement stating that the CR 14 form signed in October 2010 was fake and that the stamps and signatures were fake. She highlighted the procedures for change of directorship and averred that these had not been followed.

5. On 12 March 2013 Avila Zvenyika, in her capacity as company secretary, then replied stating that the claims were unfounded and highlighting that the company is wholly owned by its two directors, Lion Chirove and herself. She also explained that the two non-shareholding directors had been removed by a company resolution in October 2010. She also stated that the two directors, namely, the Smith brothers, had agreed to be removed back then to pave way for a loan since their immigration papers were not in order. She stated that everything had been done above board.

6. On 13 March 2013 the plaintiff's lawyers had written to the Bank regarding the opening of the account which was still not opened.

7. On 22 March 2013 the defendant's lawyers had written to the plaintiff's lawyers advising them of receipt of the statement made by the Registrar of Companies concerning the anomalies that had been detected. They also advised that the dispute needed to be resolved since the court had granted the order on the 6^th of February on the basis that the CR14 now under dispute had been the correct one. In view of these developments they also pointed out that their client, the Bank, was unable to accede to the request to activate the account.

8. On July 5, 2013 Martha Chakanyuka signed another statement - this time essentially confirming that following certain documents being availed that the CR14 form earlier criticised as improper was in fact proper. She confirmed that the Smith brothers had indeed been removed as directors on 4 October 2010.

9. On 16 July 2013 the plaintiff's directors finally accessed the account having been informed, according to the plaintiff, through a casual encounter with the Bank's manager, that the account had been reopened.

The Plaintiff's perceived loss

The gravamen of the plaintiff's evidence was that over the time when it was not allowed access to its account, it had contracts with several retail supermarkets as a supplier of vegetarian products. These included shops such as OK, Bon Marche and Spar shops. A contract with OK, dated 2010, was placed before the court as Exhibit E. The contract itself however did not indicate the value or volume of business between the parties.

From the OK and Bon Marche shops, the plaintiff valued its business for the relevant period when its account was frozen at $50,000= with a profit of $26,000= after expenses had been paid. Exhibits H1-H6 were handed in. Three of these were statements generated by the plaintiff's director while another three were said to be generated by OK although there was no official verification of these documents.

Also presented were the plaintiff's own calculations of business with the Spar shops (Exhibits G1-G5). However, the plaintiff did not produce any evidence or proof that business was actually being conducted constantly or on a monthly basis.

The plaintiff's director also presented its projections of business it was set to do with TM and Pick n Pay. It said the value lost amounted to approximately $74,000=. In addition, the plaintiff's company had a credit facility with TN Bank for up to $4,000= per month and was doing business with TN Harlequin (Exhibit F).

It terms of lost business, it had also secured an arrangement to supply the Seventh Day community with vegetarian products at its Adventist camp sites. With 52 campsites attended by about 5,000 people per camp annually, the plaintiff's estimation was that it lost a potential of US$5,000= per campsite giving a total loss of $260,000=.

In July 2012, the plaintiff had gotten another product for distribution from Good Hope International Enterprises for soya milk. It alleged that it would have been a sole distributor, and, on arrangement, would have been a regional distributor. However, no proof of this averment was produced. At the time, the plaintiff stated it had received an order by consignment from Good Hope for $30,000=. This would have been serviced from the account.

The plaintiff stated that, overall, it was expecting, during the period its account was frozen, a total of US$495,000= worth of purchases with Good Hope and from this amount $693,000= worth of sales thereby giving it profit of $198,000=. The plaintiff later clarified, in cross-examination, that it was still negotiating this contract and therefore no contract could be availed. However, it had received the order by consignment for $30,000= though, again, no proof was produced. From the Fry's Group, business lost over the seven month period was estimated to $102,712= after expenses.

The company, according to its Director, had also made inroads into the possible supply of meat-free products to Catholic schools around the country under which he estimated it would have made at least $20,000 - $25,000 per month.

All the above was the kind of business the plaintiff said it lost on probabilities. The devastating consequence arising from the defendant's perceived breach of contract was not only loss of income, according to the plaintiff's director, but also termination of contracts.

The distributorship business with the Fry Group was terminated in April 2013 and with Good Hope in September 2013. It lost all its suppliers because it failed to pay them. It lost all its clientele whom it failed to service. It was, according to him, a sole distributor of vegetarian products. It was also working with a “niche market”. It also lost its reputation in the process. By December 2012 the company, according to its director, had grown to 12 employees. Today it has none.

The plaintiff blames the defendant for the sum total of these woes because it could not access its account to conduct its business.

Interrogation of the loss in cross examination

The plaintiff was quizzed by the defendant's counsel…, on the company's financial accounting procedures.

The plaintiff's director conceded that he is fully aware of the need to keep proper books of account by any company. He agreed that such books would indeed vividly indicate the company's flow of business and any profit and loss made. He was also in agreement that annual tax returns would clearly indicate the actual profits made for tax purposes. He said all such documentation existed with respect to the plaintiff company but admitted that they had not been tendered as evidence.

He did not dispute that a Bank can place administrative requirements over those who operate accounts and that it is entitled to refuse access where it has concerns as to the authenticity of any representative. However, he was adamant that the Bank acted improperly, especially as it had been given the necessary information as who the directors were.

The plaintiff's director also confirmed that indeed the Smith brothers had come in as financial partners as the company was going through financial difficulties at the time. Their terms were to be shareholders on a 49-51 percent basis. The other condition was to secure them as signatories to the account.

It emerged from cross-examination that certain monies invested by the Smith Brothers had not been paid back by the plaintiff. The Smith brothers were therefore seeking to protect their investment.

He also agreed that no final order had been sought to the provisional order that had been granted by the court on 6 February 2013. He also conceded that the day that the order was granted, on 6 February 2013, was also the very day that the Registrar of Companies had written to the other director, Ms Zvenyika, seeking an explanation of allegations of possible fraudulent removal of directors. This information had not been before the court at the time that it was granting the provisional order.

He also did not deny that the Smith brothers had also sought an urgent chamber application to stay operation of the provisional order granted by the court on 6 February 2013.

He further agreed that he had not taken any concrete action to actively challenge the statement and that the statement was withdrawn in July against a backdrop of investigations the Registrar had carried out. He did however maintain that the statement was challenged when he was being prosecuted.

Although his view was that the provisional order granted on 6 February 2013 was clear as to its directive regarding the re-opening of the account. He did concede that it was the final order that specifically sought to confirm himself and Ms Zvenyika as the true directors of the company.

He admitted that no action was taken on his part to seek a final order as directed by Justice PATEL in HC882/13 which would have put an end to the dispute at least as way back as March 2013. He also admitted that on the same day that bail conditions were relaxed to allow him to operate the account was also the same day that the Registrar of Companies made the allegation that there was possible fraudulent activity.

The application for absolution

The defendant has applied for absolution from the instance largely on the basis that the plaintiff has essentially failed to make out a case against the defendant that is deserving of a reply. It is also argued that the plaintiff had failed to prove any breach of contract entitling it to special damages.

In terms of general principles on absolution from the instance the case of United Air Charter v Jarman 1994 (2) ZLR 341 (S) condenses the position as follows:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which the court, directing its mind reasonably to such evidence 'could or might (not should or would)' find for him.”

The above principle draws on cases such as Supreme Svc (1969) (Pvt) Ltd v Fox Goodridge (Pvt) Ltd 1971 (1) RLR 1; Lourenco v Raja & Steam Laundry (Pvt) Ltd 1984 (2) RLR 151.

The principles have also been canvassed in a number of cases such as Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S); Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H); Dube v Dube 2008 (1) 326.

In seeking to put the defendants to its defence, it is argued, by the plaintiff, that the Bank knew who the directors were as these were indicated on the CR14 form. It is also argued that as the account in question was the plaintiff's sole business account it should have been apparent that it would suffer loss if it was not permitted to transact under that account. The dispute, it insists, could have been solved at a later stage. It argues that for reasons such as these, which are common cause, it has done enough to put the defendant on its defence.

The plaintiff also lays emphasis on the fact that at this stage it is not about whether the evidence is true or false. In its view, absolution should only be granted where it has failed to establish an essential element of its claim. The plaintiff emphasises its contractual relationship with the defendant; the fact that the defendant breached the contract. In support of this, the plaintiff points out that the money would have been paid to suppliers and not to themselves.

In opposing absolution from the instance, the plaintiff places reliance on the position articulated in the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) that in considering absolution from the instance a judicial officer should always lean in favour of the case continuing. If there is reasonable evidence on which the court might find for the plaintiff, the case should continue.

However, the preponderance to 'lean in favour of' is not the same as saying a judicial officer must always lean in favour of the case continuing. It is in cases where there is doubt that the court should lean in favour of continuing as SMITH J emphasized in Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H). Where a judicial officer has no doubt in their mind from the evidence submitted, then by all means absolution should be granted. The key issue for consideration therefore is whether sufficient evidence has been placed before the court upon which the court might find for the plaintiff.

Factual and legal analysis

While damages are sought against the defendant as the unitary cause of the loss of business suffered by the plaintiff, the facts informing the claim are far from being one-dimensional.

The evidence that has been placed before the court indicates that an internal dispute and competing claims within the plaintiff company where at the heart of the chain of converging events that led to operational problems for the plaintiff company including the freezing of its account. Yet, only one cause, the freezing of its account is isolated by the plaintiff as leading to his perceived loss.

Just because a plaintiff strongly believes that a factor that he has isolated is the predominant cause of its problems does not exclude other explanations which have a bearing on the matter from being considered by the court in deciding whether sufficient evidence has been placed before it to exclude their impact.

Where a problem is multiply-caused, as in this case, the question of whether or not the court might find for the plaintiff on the evidence adduced, of necessity, depends on whether the evidence placed before the court, on a balance, sufficiently rules out other explanations as causes for the loss suffered by the plaintiff. In other words, if, from the evidence adduced it cannot be inferred, on a balance of probabilities, that the single behavioural event isolated by the plaintiff was the cause of its loss, then the evidence is simply not sufficient. The evidence adduced must, on a balance of probabilities, sufficiently pry apart other variables such as to leave the one the plaintiff relies on as the dominant cause. If, at the close of the plaintiff's case, insufficient evidence has been placed before the court to support an averment, this will not change even if the defendant is put to its defence.

What this court has before it at the conclusion of the plaintiff's case is a convergence of multiple factors, predominantly emanating from events within the plaintiff company that complicated the issue for the plaintiff.

The defendant's actions were largely responsive to such outside stimuli as opposed to being the dictator of them. Also, the defendant's actions, in refusing to release the funds, have to be put in perspective of the events that unfolded.

The Bank's client was the corporation. There was a dispute regarding the directors of the corporation. A criminal complaint was made by a competing director. The Registrar of Companies, at first, also confirmed the allegations of fraud and it was only in July when their initial position was reversed. Although a provisional order was obtained it is instructive that on the very day of its obtainment the dispute escalated rather than abated. The Bank was essentially faced with divergent claims to the account by two feuding parties each claiming legitimacy.

The plaintiff argues that the defendant breached its contract in failing to pay on demand.

Yet, in light of the facts, the Bank would equally have found itself liable to a claim from either of the competing parties to the account for wrongfully paying out of the account or un-authorised payment since each side had laid claim to the account.

There was no breach since its client was the corporation and competing claims had been placed before it by two sides within that corporation relating to its directorship. Only where the dispute was resolved in terms of clarity of directors could the Bank safely pay out. Only a foolish Bank would have paid out to any of the claimants without a final court order as to the true status of each of the claimants.

While the defendant may have acted on the strength of the documents written by the Registrar of Companies it was not the author of these documents.

The plaintiff also rests its argument for dismissal of absolution on the basis that it suffered damages as a result of the breach.

The case of Trust Bank of Africa Ltd v Marques 1968 (2) SA 796 (T) is cited in support of the contention that a Bank which fails to honour cheques when funds are available risks a claim of damages. The plaintiff argues that the contracts it placed before the court were sufficient, namely, those from OK Zimbabwe and the TN credit facility.

Finally, the plaintiff also argues that its loss was not remote.

Special damages are ordinarily regarded in law as being too remote to be recoverable. They are claimable in situations where it can be deduced that the parties actually or presumptively foresaw that they would probably flow from a breach of contract and were within the contemplation of the parties. As stated by GUBBAY CJ…, in United Air Charter v Jarman 1994 (2) ZLR 341 (S) in determining whether they are claimable it is of assistance to look to;

(a) The subject matter and terms of the contract itself;

(b) The special circumstances known to both parties at the time they contracted.

I do not think that damages arising from a quarrel among the directors was within the contemplation of the parties. In any event, the core point remains whether sufficient evidence has been placed before this court to justify such damages.

One crucial manner a purportedly dominant claim, particularly one for damages, is strengthened is by way of statistical evidence to support it.

Being a claim of special damages, the plaintiff had the responsibility to prove its quantum of damages by placing all relevant evidence before the court in order to prove its claim. Such special damages will not be granted if they are too remote.

The defendant argues that the evidence placed before the court was too scanty. No proof of invoices or proof of orders that were received and needed honouring by the Bank were submitted to the court by the plaintiff. These would have provided irrefutable proof of business that was actually lost. Also, the plaintiff did not produce any evidence which would have supported their position that the money that the defendants refused to pay would have been going to suppliers and not to themselves.

In seeking absolution from the instance, the defendant further argues that the plaintiff's books of accounts and tax returns would have been proof of the plaintiff's profitability as alleged by its Director. The plaintiff's director, in cross examination, averred to the existence of these documents but admitted that they had not been brought to court. In its written arguments against absolution the plaintiff then stated that the audited accounts were taken by the Smith Brothers and that the tax returns are filed with the taxman and can always be taken into account in damages.

Even if the plaintiff's argument is accepted that the books were taken away and that the tax returns were filed, it cannot, in my view, escape the responsibility of ensuring that these were placed before the court given that they form the heart of the dispute. It is not for the defendant to go and extract tax returns for the plaintiff. That was clearly the plaintiff's own responsibility. It is also not the plaintiff's averment that the soft copies of the accounts are what was taken. They simply state that the accounts were taken by the Smith brothers.

As argued by counsel for the defendant, where evidence is available that would assist the court to properly quantify damages and it is not produced, then the matter must fail and the defendant must be absolved from the instance. The case of Monumental Art Co. v Kinston Pharmacy (Pty) Ltd 1976 (2) SA 111 was cited in support of this contention.

Also, a party who shies away from producing evidence cannot escape the inference that he knows that such evidence will not be favourable to him. The cases of Ntsomi v Minister of Law & Order 1990 (1) SA 512 (C); Tshishonga v Minister of Justice & Constitutional Development and Anor 2007 (4) SA 135 were cited by the defendant.

If accurate statistical evidence that is representative of the company's steady growth and success of over the years, as exemplified by tax returns, was available, then, it should have been obtained. How else would the court know from the outset that it is not dealing with isolated phenomenon in so far as the plaintiff's claims of a steady growth of the business over a number of years is concerned?

The plaintiff director's own testimonial evidence of growth and projected profits is not the kind of evidence that the court has in mind as constituting “sufficient evidence upon which the court might find for the plaintiff.”

In cases of this nature, where loss of business is alleged, tax returns and audited accounts constitute the type of evidence that would, on the face, constitute a sufficient basis for a claim upon which the court might find for the plaintiff.

Therefore, on the issue of damages for loss of business the strength of the plaintiff's evidence is essentially 'dead in the water' as a result of the failure to place the kind of credible evidence that one would expect of a company as pointed out by the defendant in its application for absolution from the instance.

At the close of the plaintiff's case, the preponderance of evidence did not point to the defendant as having been the actual cause of its loss or even being in any way the major cause of the plaintiff's loss. I am satisfied that there was insufficient evidence on which a reasonable court could or might find for the plaintiff.

The defendant seeks that costs be awarded on a higher scale especially on the grounds that the plaintiff had ample time to put all its evidence together in preparing for trial, and, as such, it has been put through an unnecessary expense.

Costs, in general, recompense a successful party for expenses to which he has been put in defending a claim. They are generally awarded on an ordinary scale. Courts are reluctant to award costs on a higher scale because they are highly punitive.

It would seem to me that the overall weakness of the plaintiff's case has emerged from the totality of having his day in court to present his case as he is entitled to. It would therefore be, in my view, tantamount to exercising hindsight to land him with costs on a higher scale.

The application for absolution from the instance succeeds with costs on an ordinary scale.