Damages re: Assessment and Evidence of Damages iro Approach and the Once and For All Rule

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

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

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

“…, monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it.

There are cases where the assessment by the Court is very little more than an estimate; but, even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance.

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

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

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

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

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

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

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

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

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

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

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

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

As regards damages sustained by his motor vehicle, the plaintiff indicated that his motor vehicle suffered extensive damages including the bursting of its air bags. After the collision, the second defendant's insurers assessed his motor vehicle and ruled that it was damaged beyond economical repair. It was also his evidence that at the time of the collision ...

It was also his evidence that at the time of the collision he valued the pre-accident value of the motor vehicle at $3 billion….,.

On the first defendant's offer to have the motor vehicle repaired at her cost, the plaintiff said he had no problems with that save to say some of the damage, like the air bags, were not repairable. Those had to be fitted by the manufacturer.

On the replacement value, he indicated that as at the time of trial the replacement value was $9,6 trillion and that is the sum he was seeking. In that regard, he tendered a quotation from DESMIC Motors dated 27 May 2008 for a similar Nissan Sunny motor vehicle at a price of $9,6 trillion.

Mr Benjamin Matambanadzo gave evidence for the plaintiff. He is a panel beater by profession and owner of Imperial Motors. He did his apprenticeship with the City of Harare from 1989 to 1992. After 1992 he qualified as a panel beater. He worked as a panel beater from the time of apprenticeship to the present. His evidence was as an expert in motor vehicle repairs.

His evidence was to the effect that after examining the plaintiff's motor vehicle he concluded that it was damaged beyond economical repair. In his assessment, he looked at two principal factors, namely; the total cost of repairs and the availability of the spares. In this, he took the total cost of repairs and compared it with the cost of an accident free similar motor vehicle. He also considered the non-availability of spares locally and considered the cost of importing such spares to come up with the total cost. It was after considering these two aspects that he concluded that the motor vehicle was damaged beyond economical repair.

His conclusion was in tandem with the assessment by the second defendant's insurers' report tendered into evidence as exhibit 2. That report states that:

“The vehicle was written off due to the fact that repair costs exceed 70% of the market value mainly brought about by the fact that spares are not readily available.”

Mr Matambanadzo also alluded to the non availability of spares and the fact that air bags are not repairable.

Under cross examination, Mr Matambanadzo indicated that, in his view, the motor vehicle was for car breaking. The evidence by Mr Matambanadzo was not challenged in any meaningful way. The first defendant did not call any expert evidence to rebut the testimony by this witness….,.

The next issue is on the quantum of damages.

The assessment of damages in accidents is not an easy one. The law has been espoused in a number of cases but it would appear parties still fail to comprehend what is expected of them.

In his book, Motor Law, Volume Two, Juta 1987…, the learned author, W E COOPER, stated that:

“An owner is entitled to a sum of money (damages) which will place him in the financial position he would have been in if his motor vehicle had not been damaged. The object of an award is to compensate the owner for material loss, not to improve his material prospects. In other words, the owner is entitled to claim his negative interesse (interest).

The plaintiff's loss must be assessed as at the time the motor vehicle was damaged.”

This was also elucidated in Erasmus v Davis 1969 (2) SA 1…, wherein POTIGIETER AR said that:-

“The principle of assessment of damages in delict is that a plaintiff must, by monetary compensation, be placed in as good a position financially as he would have been in if the delict had not been committed (see de Jager v Grunder 1964 (1) SA 446 (AD) at p.456). Generally speaking, payment to a plaintiff of a sum representing the diminution in value of his damaged property will place him in such a position. In order to prove such diminution in value a plaintiff would be entitled to establish the difference between the pre-collision and post-collision value of his damaged property.”

This was also confirmed by MULLER WN AR in Erasmus v Davis 1969 (2) SA 1…, when he said that:-

”A litigant who sues in delict is entitled to recover, from the wrong doer, the amount by which his patrimony has been diminished as a result of the conduct of the latter.”

He is thus not entitled to recover anything more.

In our jurisdiction, MAKARAU JP had occasion to restate the position in Monica Komichi v David Edwin Tanner and Eaton & Young HH104-05. At page 3 of the cyclostyled judgment the Hon. Judge President stated that:-

“It is indeed the settled position that the measure of delictual damages in our law, also known as the 'negative interesse', is the calculation of an amount of money which is necessary to place the plaintiff in the (hypothetical) financial position he would have enjoyed had the delict not been committed. The measure of damages requires the plaintiff to establish the extent of her estate before the delict and a diminution to that estate as a result of the delict.”

In order to establish the diminution in value there are two methods a party can seek to employ, namely;

(a) By proving the vehicle's pre-collision and post-collision value; or

(b) By proving the cost of repairing it.

See Motor Law, Volume Two, Juta 1987 by W.E. COOPER…,.

The onus rests on the plaintiff of proving, not only that he has suffered damages, but also the quantum thereof. To discharge such onus, expert evidence is required to establish the pre-collision value and the post-collision value. The evidence must show what damages were suffered and what it would cost to put the motor vehicle to the state it was before the collision.

The plaintiff is thus required to prove the pre-accident value of the motor vehicle and its post accident value in order to reveal the diminution in value thereof. This is so because, as pointed out above, the measure of damages payable to the plaintiff is the diminution in value of the motor vehicle by reason of the damage sustained in the accident. Generally, expert evidence will be required to establish the pre-collision and post-collision values. An expert would be able to describe the nature and extent of the damage and the necessary repairs and cost thereof.

In casu, the plaintiff claimed for the replacement value as at the time of judgment. He seemed oblivious to the need to prove the pre collision and post collision value. The expert witness he called was not called upon to testify on such values at all. Whilst not giving the post accident value Mr Matambanadzo said that the motor vehicle can only be for car breaking. That, in my view, confirmed that the motor vehicle still had value. The fact that the motor vehicle was deemed damaged beyond economical repair did not imply that it was valueless. In fact, in answer to a request for further particulars, the plaintiff had said the salvage value was now about $75,000,000,000= (that is as at 26 March 2008). Unfortunately, in his evidence, such salvage value was not testified to at all. That value should have been ascertained as at the date of the accident and then used to ascertain the diminution in value of the motor vehicle. The evidence did not touch on the cost of repairs at all, again, a factor necessary in such claims. Instead, the plaintiff sought quotations of prices of similar motor vehicles. That, in my view, would not be the damages suffered in the collision. That price did not take into account the pre-collision value less the post-collision value. It is a price of a motor vehicle similar in make to the plaintiff's motor vehicle and nothing more.

The plaintiff's prayer for quantum as at the time of judgment was without legal justification.

I did not hear counsel to refer to any legal principal justifying quantum of damages as at the date of judgment in delictual claims.

The plaintiff provided a quotation as at 27 May 2008, which was the date of commencement of trial and not the date of judgment. That sum was $9.6 trillion. It is that figure that the plaintiff, in his evidence, sought to prove as the damages he suffered as a result of the first defendant's conduct.

In his closing submissions, the plaintiff's counsel submitted that such a value (of $9.6trillion) “cannot now purchase a similar vehicle. In the premises, it is respectively submitted that it would only be just and equitable that the first defendant be ordered to pay the replacement cost of the plaintiff's vehicle as at the time of such payment to take into account the increase in value of the vehicle caused by hyper inflation. An amendment to the plaintiff's prayer is therefore respectively sought in that regard.”

As with the previous prayer for quantum as on the date of judgment, this new prayer for the quantum as at the date of payment was made without any legal justification. It was made with the desire to get the replacement value as at the date of payment yet as has been stated above the plaintiff is entitled to the damages suffered as a result of the delict by the defendant and nothing more. Those damages are calculated taking into account the pre-collision value less the post-collision value. For example, if just before the collision the vehicle was worth A and after the collision it is now worth B; the difference between the A and B would be the cost of repairing the motor vehicle to its pre collision state A. If C is that difference then that is the figure the defendant should be saddled with and not the cost of replacing the entire motor vehicle including B. If there are any arguments about inflation adjustments those, in my view, should be made vis a vis the damages C and not the whole motor vehicle.

In casu, the plaintiff's approach on assessment of damages was wrong and did not prove the extent of the damages suffered.

Accordingly, the defendant is granted an absolution from the instance.

HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy. On 21 December 2006, and before the pre-trial conference, the plaintiff amended ...

On 21 December 2006, and before the pre-trial conference, the plaintiff amended its claim by the addition of paragraph 10 which is a claim for consequential damages in the sum of $100,000,000= being the replacement value of the vehicle.

The first defendant pleaded that it first acted as the second defendant's agent and its obligation ended as soon as the policy was in place and that the premium had not been paid at the time of the accident hence the policy was revoked.

The second defendant, in its plea, pleaded ignorance of the policy and put the plaintiff to the proof thereof.

At the commencement of the trial, the second defendant applied for, and was granted an amendment to its plea. The amendment was a withdrawal of the initial plea and its substitution with a plea to the effect that;

1. The first defendant, as agent of plaintiff, entered into an agreement with the second defendant that the plaintiff should pay the insurance policy premium of $3,524=26 in equal installments over a period of 3 months as from 25 February 2004.

2. That the plaintiff did not comply with this agreement, and, as at the date of the accident the plaintiff had not performed its obligations to pay the instalments.

3. In any event, the plaintiff is covered for a total of $60,000= in terms of the policy and is contractually precluded from claiming more.

The plaintiff gave evidence through its Managing Director, Mr. Zisengwe. Mr. Gideon Muchakwa gave evidence for the first defendant after which Mr. Moses T. Chakaringa and Mr. Member Murasiranwa gave evidence for the second defendant.

From the evidence adduced in court the following are common cause.

The plaintiff entered into an insurance contract with the second defendant. This was done through the first defendant who acted as broker. The premium was put at $3,524,259=. The insured value was put at $60,000,000= (old currency). On 10 February 2004, the plaintiff paid $200= (revalued) towards the premium. The plaintiff was then issued with a policy document dated 18 February 2004. The period of insurance was stated as 'From 10/02/ 04 to 31/01/05 (both dates inclusive)'.

On 23 March 2004 the motor vehicle so insured was involved in an accident and was declared a write off. As at the time of the accident, the plaintiff had not paid the balance of the premium. Such balance was only paid on 7 April 2004 to the first defendant. When the plaintiff attempted to make a claim on the policy the second defendant refused to honor the claim on the basis that the plaintiff had not paid the premium as per policy.

The testimony by Mr. Zisengwe was to the effect that the plaintiff had been asked to pay the premium in three months. It was never stated that the instalments had to be equal. At the time of the accident the three months period had not lapsed. When the accident occurred the plaintiff was asked to pay the balance in order that its claim can be sent to the second defendant - and it did so. In this regard he tendered two receipts as exhibits 1 and 2 for the payments.

The first defendant's evidence, on the other hand, was to the effect that when Mrs. Zisengwe came to insure the plaintiff's motor vehicle she was told the premium that had to be paid. As she did not have the full amount she was allowed to pay $200= on her undertaking to pay the balance in two weeks time. She was warned of the consequences of not paying the full premium. After failing to pay within that period the first defendant extended the period to three (3) months. According to Mr Muchakwa, this extension was at the plaintiff's risk.

At the pre-trial conference, the issues were viewed as;

“1. The interpretation of clause 1 of the contractual document. It being admitted that plaintiff paid its premium on 25 February 2004; and

2. The quantum of damages.”

After hearing evidence from the witnesses, it was apparent that the parties were not agreed that the premium was paid on 25 February, 2004. The receipts tendered showed the initial payment was on 10 February 2004 and the second payment was on 7 April 2004.

The main issues would thus be;

1. Whether or not the plaintiff had paid the premium in terms of the policy;

2. Whether or not the defendants are liable to the plaintiff as per claim;

3. Whether or not the plaintiff is entitled to payment of the sum of $100,000,000= in respect of its claim for the loss of its motor vehicle in terms of the policy agreement; and

4. Who between the defendants is liable to pay the plaintiff....,.

In his closing submissions, the plaintiff's legal practitioner argued that it is not unheard of that even where a party is contractually bound to perform certain obligations, should he do so negligently the wronged party may sue both in contract and in delict.

Unfortunately, counsel could not cite any authority in support of this, and, in any case, the suit here was in contract and not delict. The nature of the amendment did not change the nature of the suit at all.

Nowhere in the amendment is there any allegation of negligence on the part of the defendants.

HB96-09 : TISO NKALA vs WINNIE SEBATA and BEN DUBE
Ruled By: NDOU J

In Garikayi v Kwenda Anor HH194-91, SMITH J correctly stated the approach in determining awards in the following terms - “Reference to comparable cases, though never decisive, is instructive, but requires a study of the full judgment...,. The theoretical desirability of achieving some measure of uniformity of awards in similar cases must not fetter ...

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

In the case of Mutenure v Mutenure HH300-90 the court stated as follows:"…, court proceedings are not a game where one inflates one's claim in order to allow for an element of reduction. Claims must be genuine, realistic and substantiated in order that the court can make a proper assessment ...

HH33-09 : LOUIS MADZONGO vs GLADYS BESENT
Ruled By: CHATUKUTA J

The only remaining issue for determination is the quantum of damages. It is common cause that the plaintiff submitted for payment to the defendant an initial quotation, dated 31 October 2007, for an amount of $5,583,250,000= (old currency). It was endorsed that the quotation was valid for forty eight hours only. Payment was only effected on ...

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

The leading case in our jurisdiction on damages is Minister of Defence Anor v Jackson 1990 (2) ZLR 1 (SC).As was stated in that case, general damages for personal injuries are not, and will never be, a penalty. They are compensation intended to place the injured in the ...

HH181-10 : CEDRIC STEELE vs EDWARD HAMADZIRIPI CHIPOPE and PATRICK MADZIMA
Ruled By: MAKONI J

There is also a danger of relying on awards in other jurisdictions as our economies are so different.

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

General and Special Damages As regards general damages, the broad purpose of an award for non-patrimonial loss is to enable the claimant to overcome the effects of his injuries and to provide psychological satisfaction for the injustice done to him. Since pain and suffering cannot be accurately measured, the quantum of compensation to be awarded can only ...

General and Special Damages

As regards general damages, the broad purpose of an award for non-patrimonial loss is to enable the claimant to overcome the effects of his injuries and to provide psychological satisfaction for the injustice done to him. Since pain and suffering cannot be accurately measured, the quantum of compensation to be awarded can only be measured by the broadest general considerations. See Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194…,.; Southern Insurance Association Ltd v Bailey N.O. 1984 (1) SA 98 (A)…,. More specifically, the compensation awarded should be assessed so as to place the injured party, as far as is possible, in the position he would have been in if the wrongful act causing him injury had not been committed. See Union Government v Warnecke 1911 AD 657…,. However, general damages do not constitute a penalty but are designed to compensate the victim and not to punish the wrongdoer. The court is entitled, and has a duty, to heed the effect its decision may have upon the course of awards in the future. Moreover, awards generally must reflect the state of economic development and current economic conditions of the country. Consequently, they should tend towards conservatism lest some injustice be done to the defendant. See Sigournay v Gillbanks 1960 (2) SA 552 (A); Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A)…,.; Sadomba v Unity Insurance Co Ltd & Another 1978 (3) SA 1094 (R)…,.; Minister of Defence & Another v Jackson 1991 (4) SA 23 (ZSC)…,.

In this context, no regard is to be had to the subjective value of money to the injured party, and, therefore, the award cannot vary according to whether he is a millionaire or a pauper. Thus, the courts are not concerned with the probably erroneous value that a person would put on his own life and limbs, but with the dispassionate and neutral value which society at large would deem appropriate on the basis of the prevailing value of money in that society. See MUNKMAM: Damages for Personal Injuries and Death (16^th ed.)…,.; Radebe v Hough 1949 (1) SA 380 (A)…,.

HH16-13 : KEMBO MOHADI vs THE STANDARD and STANDARD PRESS (PVT) LTD and DAVISON MARUZIVA and EDDIE CROSS
Ruled By: ZHOU J

The court was invited by counsel for the excepient to award costs on an attorney-client scale on the ground that the amount claimed should excite the anger of the court as a plus petitio. It is not uncommon now for large sums of money which bear no relation to the awards being made in this ...

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

SPECIAL DAMAGES I propose to first deal with the issue of special damages because the issue is relatively straightforward. Special damages are those damages that have occurred and can be calculated with precision. The plaintiff contends that she spent money in order to attend to her eyesight problem which was caused directly by the assault. She claims that she should be ...

HH55-14 : PRINCE CHINEMBIRI and PARADZI MUPANDENYAMA and ALEXIO TEMBO and KUDAKWASHE PFUNDE and CLEMENCE SHAMU and ORCHARD KANJADO vs CHANCE NCUBE and DANIUS RUNGANO and ZETDC
Ruled By: MATANDA-MOYO J

In Minister of Defence Anor v Jackson 1990 (2) ZLR 1 GUBBAY JA…, had this to say….,; “It must be recognized that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task of assessing damages for personal injury is one of the most ...

In Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 GUBBAY JA…, had this to say….,;

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

The learned Judge went on to highlight eight broad principles that should guide a court in assessing such damages. These include that:

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

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

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

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

5. The fall in the value of money is a factor which should be taken into account in terms of purchasing power “but not with such an adherence to mathematics as may lead to an unreasonable result.” Per SCHREINER JA in Sigournay v Gillbanks 1960 (2) SA 552…,. See also Southern Insurance Association Ltd v Bailey NO 1984 SA 98…,. and Ngwenya v Mafuka SC18-89…,.

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

7. Awards must reflect the state of economic development and current economic conditions of the country. Sadomba v Unity Insurance Co. Ltd and Anor 1978 RLR 262…,; and Min of Home Affairs v Allan 1986 ZLR 263 (S)….,. They should tend towards conservatism lest some injustice be done to the defendant. See Bay Passenger Transport Ltd v Franzer 1975 SA 269…,.

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

Appealed
SC27-14 : WYNINA (PVT) LTD vs MBCA BANK LIMITED
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

It is accepted that in assessing damages, the court must, as one of the aspects, have regard to the events that have occurred from the damage-causing event to the date of the action in order to reach a more realistic assessment of the damage. See General Accident Ins. Co SA Ltd v Summers etc 1987 ...

Appealed
SC42-13 : DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) vs ONISMO RUTSITO
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

The claim for distress and anxiety The respondent's claim in the court a quo was for damages for distress and anxiety. Although during argument the respondent's counsel submitted that the claim for general damages is based on the fact that the respondent suffered nervous shock, the respondent's claim was never amended to reflect such a ...

The claim for distress and anxiety

The respondent's claim in the court a quo was for damages for distress and anxiety. Although during argument the respondent's counsel submitted that the claim for general damages is based on the fact that the respondent suffered nervous shock, the respondent's claim was never amended to reflect such a claim.

His claim on the pleadings remained one for distress and anxiety.

It is the appellant's submission that no cause of action can be founded on a claim for distress and anxiety in our law and that even if it were to be accepted for a moment that the respondent's claim was one for nervous shock, such a condition was transient and did not result in a condition requiring treatment.

There would appear to be substance in this submission.

It is not every form of harm which constitutes damage. The position is settled that:

“A claim for damages in respect of pain and suffering strictly constitutes more than a head in a general Aquilian action; it is, in origin, a separate remedy. It aims at compensating the victim for all pain, suffering, shock and discomfort suffered by him as a result of the wrongful act. It includes both physical and mental pain and suffering and both past and future pain and suffering. Moreover, account must be taken not only of the pain and suffering suffered as a direct consequence of the infliction of the injuries but also of pain and suffering associated with surgical operations and other curative treatment reasonably undergone by the plaintiff in respect of such injuries…,.”

See the Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN and GAUNTLETT…,.

Damage is the detrimental impact upon any patrimonial or personality interest deemed worthy of protection by the law. The concept of damage is not unlimited in scope. It does not include every form of harm whatsoever, and, indeed, some forms of harm are excluded. In this context, the learned authors, NEETHLING, POTGIETER & VISSER in The Law of Delict, 6ed, state….,:

“The concept of damage does, of course, include more than harm for which compensation is recoverable, since satisfaction may be awarded for some forms of damage. As indicated by the definition above, only harm in respect of legally recognised patrimonial and non-patrimonial interests of a person qualifies as damage. This may be the reason why losses and harm such as inconvenience, disappointment, fear or frustration are not compensable in terms of the Aquilian action, or why a husband may not claim for the loss of the comfort and society of his wife who has been killed, or why the frustration of an expectation of inheriting something does not constitute damage. One may, of course, also argue that the losses referred to are damage but that the law refuses compensation for policy reasons. Reinecke's argument that the frustration of income from an unlawful activity does not amount to damage in the legal sense appears to be correct, although it has been subjected to criticism.”

In The Law of Delict 2ed by NEETHLING, POTGIETER & VISSER, the authors cite with approval remarks by BOBERG, The Law of Delict that;

“Mere mental distress, injured feelings, inconvenience, or annoyance, cannot support an award of Aquilian damages.”…,.

PROFESSOR G FELTOE in A Guide to the Zimbabwean Law of Delict also states:-

“Whereas damages can be claimed for pain and suffering, damages cannot be claimed for transient nervous distress which does not lead on to a recognized psychiatric complaint requiring treatment.”

The position may therefore be accepted as settled that it is not every complaint that warrants an award of damages. The complaint must lead to a recognized medical condition which would require treatment before such damage can be cognizable in terms of the law.

In the present matter, the respondent agreed, during cross examination in the court a quo, that no psychiatric condition resulted. The medical report produced before the court showed that there were no pathogens in the sample that was analyzed. No harm requiring medical treatment was proved. Indeed, no medical evidence was called to confirm whether he had suffered any nervous shock as suggested. It was his legal practitioner…, who sought to lead such evidence from the bar when he stated:

“…, .it is my respectful submission that in terms of the evidence led by the plaintiff his character changed every time he will get a coke bottle, he examines it and my Lord, he was shocked to see an iron nail in his coke bottle…,.”

In his heads of argument before this Court, the respondent's legal practitioner further states:-

“It is further submitted that the respondent suffered a medical and psychiatric harm. After suffering from the shock of finding a nail in a coke bottle, Respondent had to go to a doctor to be examined and the doctor then prescribed antibiotics and milk of magnesia. Further, the psychiatric harm is revealed by his change of character where now every time he gets a coke bottle he examines it and this always gives him shocking memories and can be equated to post traumatic disorder, a direct result of finding a nail in the coke bottle. It is respectfully submitted that Respondent suffered harm which is recognised under the Aquilian Action.”

The fact of the matter is that this submission does not disclose what, if any, medical condition developed and the treatment that became necessary. In the absence of medical evidence, no real reliance can be placed on these remarks by the legal practitioner who clearly is not qualified to express an expert opinion on this matter.

Indeed, counsel for the respondent conceded before this Court that medical evidence should have been adduced to confirm whether the respondent had developed a medical condition following his consumption of the beverage.

In the result, therefore, I am satisfied that the respondent did not prove any damage such as would have founded a cause of action under our law of delict. Clearly, whatever distress or anxiety or nervous shock he may have experienced was transitory and no psychiatric or other medical condition requiring treatment eventuated.

In the circumstances, the appellant had no case to answer. That should have been the end of the matter and absolution from the instance ought to have been granted.

View Appeal
SC31-14 : BRENNAN'S DIESEL SERVICES (PVT) LTD vs TENDA BUS SERVICES (PVT) LTD
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

It was further contended, on behalf of the appellant, that the learned judge in the court a quo fell into error by confusing delictual damages with contractual damages and that the actio legis aquiliae is not applicable in the circumstances of this case. In Amler's Precedents of Pleadings, 4 Ed, the learned ...

In Amler's Precedents of Pleadings, 4 Ed, the learned author states that:

“The actio legis aquiliae enables a plaintiff to recover patrimonial loss (including a purely economic loss) suffered through a wrongful and negligent act of the defendant…,. Liability is dependent upon the wrongfulness of the act or omission of the defendant.”

In the aquilian action, damages are awarded as compensation for patrimonial loss, and are measured by the pecuniary loss, actual or prospective, sustained by the plaintiff. The measure of such loss is often referred to as the interesse, which is the difference between the present value of the plaintiff's patrimony and the value which it would have had if the act complained about had never happened. In assessing the level of damages to the corporeal property of a plaintiff, the court has to apply a practical method of such assessment and in most cases the plaintiff has to establish what is referred to as 'the reasonable cost of repairs.

In Heath v Le Grange 1974 (2) S.A. 262, the onus resting upon a plaintiff to prove damage was confirmed by THERON J thus…,:

“…,. It appears to me to stand to reason that, if on the pleadings the onus of establishing his damages has been placed on the plaintiff and he chooses to attempt to prove the patrimonial loss sustained by him by reason of the collision not by producing appraisements of the pre-collision and post-collision values of his vehicle but by producing evidence of what it cost to have repairs done to it, he cannot discharge the onus resting upon him save by proving both that the repairs were necessary and that the cost thereof was fair and reasonable. That this is correct not only follows from what was stated in the judgment of Scrooby v Englebrecht but has been accepted in an impressive number of decisions of our Courts since the Scrooby case, some of which have been mentioned in the course of this judgment and at least two of which (de Witt v Heneck, supra and Paarl Transport Services v du Toit, supra) are decisions by two-Judge Courts of this Division.”

Clearly, the actio legis aquiliae is not the cause of action with which the court was seized. The appellant did not premise its cause of action on it. The appellant's claim is not for damages arising from delict.

In its summons, it claimed payment of a specified sum as being due and owing in respect of services rendered and materials supplied under a contract concluded between the parties and fully performed by the appellant on the one hand and partially, by the respondent, on the other.

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

Special damages relate to damages that have already occurred and are capable of precise mathematical calculation. These are the damages associated with costs of medical bills that should be proved by placing before the courts the amounts incurred by the plaintiff in seeking and obtaining medical treatment. General Damages In the case of Minister of Defence Another ...

HH99-15 : COSMAS NYAMBARA vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL and DETECTIVE CONSTABLE MUUYA and DETECTIVE SEARGENT MUSEKIWA
Ruled By: DUBE J

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

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

It is well established that delictual damages are calculated as at the date of the delict. In this respect see Parish v King 1992 (1) ZLR 216 (S).

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

It is trite that a party that is entitled to claim damages for any wrong done to him or her is obliged to mitigate his or her damages.

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

Liability always precedes quantification of that liability. Put differently, damages are not payable in a vacuum. They rest on an obligation, which, in turn, gives content to the liability. In the absence of an obligation, there can be no competent order for the payment of damages even if quantification was done prior to a determination of the ...

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

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

HH189-15 : ELTON NYABUSHA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY
Ruled By: MATANDA-MOYO J

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 ...

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

Should our courts be courts of law or courts of justice? One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; ...

Should our courts be courts of law or courts of justice?

One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; one is nothing without the other. Yet, those who practice the law, will know that, often times than not, the rigid application of the law may lead to a palpable injustice. That is why the law is fluid, meaning that its application depends on the circumstances before the court.

The law must be applied to avoid perpetrating an injustice, especially where the extent of the injustice would be the non-suiting of a litigant, leaving the litigant with nowhere else to turn as it were. That is not to say that non-deserving litigants should be shielded from the inevitable consequences that flow from a correct application of the law. On the contrary, it is my view that our courts should be courts of law that derive their authority and legitimacy from a fair and impartial application of the law in the pursuit of justice and fairness.

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”

It is common cause that the respondent has paid in full for the component of the 2008 judgment which provides for payment in Botswana Pula, in terms of the order of the Supreme Court dated 28 February 2012. It is common cause that payment of the Zimbabwe dollar component of the 2008 judgment remains outstanding - although the respondent has tendered this payment to the applicant. It is common cause that the applicant did not attempt to execute in respect of the Zimbabwe dollar component at the date of the judgment in 2008, and that, in 2009, Zimbabwe adopted a multi-currency regime. It is also common cause that after the accident the applicant was disabled.

The applicant has come before this court and avers that he requires urgent medical attention.

He has attached a quotation from a medical specialist, Mr. Bijay B. Garach, dated 23 March 2012, to show that he requires an estimated USD$279,400= for surgery in Durban South Africa. The purpose of the surgery is to correct a condition of stiffness in the right knee which is possibly related to a fracture and muscle tightness and to an associated knee joint injury. Mr. B.A.V. Ncube, a specialist orthopedic surgeon, certified that the applicant is in pain and gross discomfort in his right foot, on 4 June 2012, and that he needs further surgery to remove the implants and to fuse his mid-foot and correct his mal-aligned toes.

The applicant is currently unemployed and has urgent need for funds in order to access the medical assistance he requires.

On 24 October 2012, the applicant's legal practitioners addressed a letter to the respondent to which they attached the judgment of 23 January 2008. In the letter, the respondent was reminded that the Zimbabwe dollar component of the judgment remained unpaid in a total of ZWD$4,937,217=09. It is common cause that the Zimbabwean dollar has fallen into disuse. The respondent was advised that the applicant had approached the Reserve Bank of Zimbabwe which had confirmed that as at 23 January 2008 one United States dollar was equivalent to ZWD$30,000=. Converting ZWD$3,937,212=10 to USD translates into USD$164,573=90. Interest at the prescribed sum translates to USD$41,143=47. The total demanded from the respondent is USD$205,717=38.

In a letter dated 8 November 2012, the respondent, through its legal practitioners, tendered the ZWD$ to the applicant on the basis that the Zimbabwean dollar was still valid currency, and that, it being the currency of the judgment which the applicant was seeking to enforce, that is the currency in which the applicant should be paid. The computation of the interest was brought into question.

In a letter dated 19 November 2012, the applicant's legal practitioners explained that interest had been calculated at the prescribed rate of interest from February 2008. In paragraph 12.1-14 of the founding affidavit the applicant avers that:

“I need to execute against the respondent. I need to have the judgment in my favor sounding in Zimbabwe dollars amended to reflect United States dollars so that I am paid in a currency that I will be able to use. I submit that the Zimbabwe Dollar is now moribund and has fallen into disuse. It is no longer the currency in use at the moment. There is no point in giving me, as respondent contends, the Zimbabwe dollars as I will not be able to use them to access the medical attention that I so badly and urgently require. I submit that I am entitled to effective remedies and giving me Zimbabwean dollars is hardly such effective remedies.”…,.

The notice of opposition was filed of record on 30 May 2013. Mr. Charles Stewart Gardiner deposed to the opposing affidavit on behalf of the respondent. He is a son of the Managing Director of the respondent, and himself a director of the respondent company. He averred that the applicant should apply to the court which granted the judgment in question for the judgment to be corrected in accordance with the rules of this court.

Mr. Gardiner denied that the applicant had a right to correct the judgment in terms of the rules of this court. He denied that the applicant was permanently disabled, although he accepted that the applicant was injured in the accident. He emphatically declared that the applicant was dishonest and that he had fraudulently exaggerated his injuries and allegations of disability. He denied that the applicant is in urgent need of medical attention. He reiterated that the applicant has already received a sum of USD$90,332=24 from the respondent and averred that this amount ought to have been more than sufficient to fund whatever medical attention the applicant allegedly requires.

It was admitted that the respondent is bound by the terms of the Supreme Court order.

The respondent expressed certainty that the applicant's awards which emanated from this court were based on fraud, fraudulent documents and perjured evidence, and referred the court to its application for leave to adduce further evidence which it filed before the Supreme Court simultaneously with its appeal under case number SC19-2008.

Mr. Gardiner averred that the court should have regard to the independent expert evidence that was filed before the Supreme Court to prove the allegations of fraud against the applicant. He re-iterated that the respondent believed that it was obliged to effect payment in the amount claimed by the applicant and awarded to him by the court. It was denied, on behalf of the respondent, that it was to blame for the applicant's hardship because the basis of the liability of the respondent arises entirely from a finding of vicarious liability for the negligence of its former employee.

Three issues fall for determination by this court;

(a) The first one is whether this court has jurisdiction to entertain this matter.

(b) The second issue for determination is whether it is competent for this court to award payment in United States dollars in respect of a judgment sounding in Zimbabwean dollars.

(c) Finally, we must determine whether it is competent to determine the rate of exchange by which the conversion may be made.

(a) Jurisdiction

It was submitted, on behalf of the applicants, that the High Court has jurisdiction to deal with any matter that is placed before it and that there is nothing amiss in this court dealing with a matter arising out of a judgment of this court. The court was referred to the case of Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors SC21-14 as authority for this proposition.

The court perused the judgment of the court a quoHH108-11/ HC5710-09.

The issue for determination, as it was understood by that court, was that the applicants had approached that court since it was the only court with inherent jurisdiction seeking a declaratur that the principle of currency nominalism has no place in Labour Law (i.e. a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. The applicants sought a further declaratur that to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is, in an amount, currency, and quantity that achieves fairness as required by the Labour Act. A further order compelling the respondent to pay damages in USD was sought. The principle relied on by the applicants was that a successful appellant ought to have the discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him for the loss as well as fulfill the objectives of the Labour Act.

The respondent had opposed the relief sought by the applicants before the High Court on the basis that the matters raised had been canvassed and dismissed by the Labour Court and were therefore res judicata; that this matter was purely a labour issue by virtue of section 89(6) of the Labour Act [Chapter 28;01]; that the court was being asked to usurp the role of Parliament by repealing the common law principle of currency nominalism and that the court was being asked to 'overrule” those decisions of the Supreme Court which had already made the point that in quantifying damages in labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension.

The High Court took the view that it was the only court with power to issue declaratory orders. On the issue of usurping the role of Parliament, the High Court took the view that 'it is not impermissible for the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap especially where not to do so will leave many an unlawfully dismissed employee languishing in an asylum of financial misery'.

On page 5 of the judgment, the High Court postulated the question of whether, in the circumstances of the case before it, it ought to declare that 'in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.'…,.

Clearly, the High Court limited the application and scope of its judgment to the realm of employment relations and to the period during which there was lack of economic normalcy. It applied the principles of equity and enjoined itself to 'tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.'

The High Court ordered the respondent to pay damages in USD using the official exchange rate obtaining as at 5 July 2007.

The respondent appealed.

The appeal and cross appeal came before a five member bench of the Supreme Court on 11 September 2013. The judgment of the Supreme Court was to allow the appeal to the extent of setting aside the judgment of the High Court for lack of jurisdiction. It was held, with the consent of both parties, that the matter should have been determined by the Labour Court.

It is this court's view that it would not be proper to rely on principles which were enunciated in the context of labour disputes, which differ materially from the matter under consideration, and in respect of which certain principles underline their conduct, which are not applicable here, such as social justice and equity. The court is bolstered in its view by the recent judgment of the Supreme Court, Madhatter Mining Company v Marvelous TapfumaSC51-14, where the court stated that Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors HH108-11 had been overturned on appeal and could no longer be cited as authority or as a basis on which a court can convert damages awarded in Zimbabwe dollars to United States dollars.

The vexing question of whether the USD amount would give true value to the damages that the respondent would be entitled to was posed by the court.

True value was defined as a value that would 'neither over-compensate the respondent nor inadequately do so'. Other pertinent considerations for a court faced with the question of converting Zimbabwe currency to US$ were the issue the two main Zimbabwe dollar to USD$ exchange rates which obtained prior to 2009, i.e. the official and the unofficial rates….,. Finally, the Supreme Court emphasized that it is the Labour Court - and not the Supreme Court - which in endowed with jurisdiction to apply principles of equity in its determination of labour disputes based on the provisions of section 2A of the Labour Act [Chapter 28:01].

See Horace Nzuma & 2 Ors v Hunyani Paper & PackagingSC137-11.

I accepted the submission made on behalf of the respondent that this court has no similar jurisdiction to that of the Labour Court, to determine disputes on the basis of social justice or principles of equity.

The Labour Court, in Madhatter Mining Company v Marvelous TapfumaSC51-14, was then given guidance by the Supreme Court and the matter was remitted back to it for the determination of the following issues:

(a) What is the effect of the change of currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe Dollar currency which, though not demonetized, is no longer in use?

(d) The method of calculating the quantum of the debt in current realizable currency if the conclusion of the above issues is in favor of payment in United States dollars.

These questions given for the guidance of the Labour Court are regurgitated here in the realization that these are the same questions that this court may have to determine if the question of jurisdiction in this matter before it is resolved in favor of the applicant.

In defence of this claim, the respondent raised the main point of the absence of jurisdictional basis on which the court can 'change' or 'convert' a judgment that was given by it in January 2008.

I am grateful to counsel for the respondent for the extensive heads of argument filed of record, which appeared to have been tailored to respond to the questions for guidance which were issued by the Supreme Court, as listed above, for the guidance of the Labour Court.

It was submitted, on behalf of the respondent, that if there is such a jurisdiction, there is a dispute as to whether it can be exercised five years after the original judgment and one year after the judgment of the Supreme Court in which the matter was not raised; whether the conversion is to take place on the date of the judgment or on the date on which payment is made; what the proper rate of exchange would be; whether the conversion can be made in respect of those heads of damages which were incurred and paid for in Zimbabwe dollar currency and awarded as special damages at trial; and, finally, the bona fides of the applicant.

The respondent submitted that medical expenses and towing charges are special damages which were incurred in Zimbabwe dollars not United States dollars. The loss was incurred 15 years ago in Zimbabwe dollars, the damages were alleged and proved seven years ago in Zimbabwe dollars. The respondent disputed the applicant's entitled to interest at the prescribed rate, or at any rate, on the basis that the prescribed rate of interest sought to be relied on was only introduced on 23 October 2009 by S.I.164 of 2009 and backdated to 23 October 2008.

Finally, the respondent submitted that, in respect of the three heads of general damages that the applicant now seeks payment for in foreign currency, which was not available to him, and which he did not seek, at the time of the trial, those damages are not due to him in any other currency other than the currency that he claimed them in.

It is trite that the cause of action for the relief being sought must be found in the founding affidavit. See Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D); Director of Hospital Services v Mistry1979 (1) SA 626 (A)…,.; Dajen (Pvt) Ltd v Durco (Pvt) Ltd 1998 (2) ZLR 235 (SC)…,.; Mangwiza v Ziumbe NO & Anor2000 (2) ZLR 489 (SC)…,.

It was submitted, on behalf of the respondent, that the founding affidavit does not disclose the cause of action to support the relief sought. It was submitted, correctly in my view, that the applicant's need for urgent medical attention is not a jurisdictional basis for the relief sought. It was contended that the fact that the Zimbabwe dollar is now moribund and has fallen into disuse, and that, there is no point making payment in it, again affords the applicant no jurisdictional basis for the relief sought. Finally, it was submitted that to plead ad misericordiam that he is entitled to an effective remedy does not assist the applicant at all.

It is common cause that upon the introduction of the multi-currency basket in January 2009, Parliament did not see fit to introduce any legislation to enable this court to look at judgments given before January 2009.

It was contended that, in the absence of legislative authority that enables this court to look at judgments given in Zimbabwe dollars before dollarization in January 2009, we must be guided by the usual common law Rules. I find myself in full agreement with these statements of the law as it currently stands.

However, in case I am wrong in my view that there is no jurisdictional basis on which this court may grant the relief sought by the applicant, I will proceed to deal with the merits of the matter.

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows: “The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or ...

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.

See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 @ p176, 178,186-7 and 192; Estate Garlick v Commissioner of Inland Revenue 1934 AD 499 @ p502…,. There are, however, a few exceptions to the rule which are mentioned in the old authorities and have been authoritatively accepted by this court…, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example costs or interest on the judgment debt which the court overlooked or inadvertently omitted to grant…,.

(ii) The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous, or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter 'the sense and substance' of the judgment or order…,.

(iii) The court may correct a clerical, arithmetical or other error in its judgment in order to give effect to its true intention…,.

(iv) Where counsel has argued the merits and not the costs of a case…, but the court makes an order granting costs…, it may thereafter correct, supplement or alter the order…,.”

The submission that none of these exceptions apply to the applicant was accepted by the court, as well as reference that the principle of finality in litigation (interest reipublicae ut sit finis litium) is a part of our law.

See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (SC)…,; Maheya v Independent Africa Church2007 (2) ZLR 319 (SC)…,.

This court also accepted as correct, the submission made on behalf of the respondent, that the present application is not intended to supplement, clarify, or correct the judgment of January 2008 - but to alter its substance. The alterations are not incidental or consequential corrections - but go to the very heart of the orders made.

In respect of towing charges and medical expenses already incurred, the purpose of the application is to change the very basis of the currency in which those special damages were incurred. In respect of the three headings of general damages, the application intends to change the basis on which those damages were sought, when those damages were suffered in Zimbabwe, in the currency of payment then prevailing.

It is common cause that there was a considerable delay by the applicant in bringing this application, the original judgment having been handed down in January 2008 and the use of the United States dollar having been authorized by January 2009. The appeal was heard in October 2010 and the Supreme Court judgment handed down in February 2012. Nearly 15 years have passed since the accident in question and four and half years since dollarization. No explanation was given by the applicant for the inordinate delay in making this application. Any application to correct or supplement an order, whether in terms of the common law or under Rule 449 of the High Court Rules 1971, must be brought as soon as possible, or at the very least within a reasonable period. See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173…,.

The leading cases on currency nominalism in this court merit discussion.

In Shava v Bergus Investments (Pvt) Ltd 2011 (2) ZLR 340 (HC), a full bench of this Court, through my brother MUTEMA J and CHIWESHE JP concurring, held that a party cannot revalue a judgment debt for purposes of execution. Citing Mukorera v Ocean Breeze Engine and Cooling SystemsHH13-08…, the court held it to be trite that the principle of currency nominalism was part of the law of Zimbabwe. The court held that, to allow a party to change the currency of the judgment was 'not only incompetent for arbitrariness but offended against the time honored principle of currency nominalism'. The court said the following…,:

“That principle holds that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of the currency.”

The court also said…,:

“It is beyond argument that the first respondent's debt sounded in money and the judgment was given in March 2008 with the specific directive that the values of whatever was damaged by the appellant were to be as at the time of judgment. The values were in Zimbabwe dollars and not in US dollars. The principle of currency nominalism was therefore still applicable. It was accordingly idle for the first respondent to revalorize its claim on execution. It ought to have made a court application for the conversion of the currency.”….,.

Counsel for the respondent…, submitted that, before this court came to above underlined conclusion, it ought to have examined, in greater detail, the impact of the 'once and for all rule' and of the submission that the court cannot 'convert' the currency on application because it will be functus officio.

I found this view persuasive.

It was submitted, further, that reliance on Mukorera v Ocean Breeze Engine and Cooling SystemsHH13-08 should not have led the court to the conclusion that it came to, because, in that case, the court was emphatic in its view that:

“…, the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.”

In conclusion, this court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this court cannot revalue an order for the purpose of execution, let alone completely re-write an order granted nearly seven years ago. Any such power would have to be the consequence of legislation - which currently does not exist in Zimbabwe.

Under the common law, and as a protection against loss of value of a judgment, where a litigant has suffered a loss that can properly be expressed in foreign currency the court can enter judgment in foreign currency, but payment must be made in local currency converted as at the date of payment. See Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe1988 (2) ZLR 482 (SC)…, where the court said that:

“Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of devaluation in the value of the currency between the date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd1994 (4) SA 747 (A)…, where it was stated that;

“…, the damages to be awarded in this case should be expressed in US dollars. It is implicit in any order to this effect that the judgment debt may be satisfied in South Africa by payment in the foreign currency or by payment of its equivalent in Rand when paid.”

This court is persuaded by the contention, which is supported by various decisions by the Supreme Court and the High Court, that, had the judgment in this matter been sought and made after January 2009, even in respect of an accident that occurred before that date, judgment could be granted in foreign currency as being the effective currency to redress the loss.

As further authority for this proposition, see Kwindima v Mvundura2009 (1) ZLR 168 (H).

However, in this case, judgment was sought prior to January 2009, specifically in Zimbabwe dollars, and quite clearly Zimbabwe dollars is the currency in which the losses were sustained.

Section 41 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] reads:

“41 Legal tender of banknotes

(1) A tender of a banknote which has been issued by the Bank and which has not been demonetised in terms of subsection (2) shall be legal tender in payment within Zimbabwe of the amount expressed in the note.

(2) The President may, by statutory instrument, call in and demonetize any banknotes issued by the Bank, and shall likewise determine the manner in which and the period within which payment for such banknotes shall be made to the holders thereof.”

It is common cause that the President has not demonetized the Zimbabwe currency in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations 2009, as confirmed by the Finance Act 2009, and that, he had not done so at the time that this application was filed, on 8 May 2013.

Section 44 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides that:

“44A Legal tender of foreign currencies

The Minister may, in regulations made under section 64, prescribe that, subject to such conditions as may be specified in the regulations, a tender of payment in any currency other than Zimbabwean currency shall be legal tender in all transactions or in such transactions as may be specified in the regulations.”

It is submitted, on behalf of the respondent, quite correctly in my view, that this provision does not render the Zimbabwe currency to be moribund, but that it allows foreign currencies to be treated as legal tender in addition to the Zimbabwe currency. It was correctly submitted, in my view, that there is no statute or other legal instrument that has abolished or suspended the existence of the Zimbabwe currency. Accordingly, as a matter of law, if not practice, the Zimbabwe currency still exists. See Stuart v National Railways of Zimbabwe (unreported)…,.

If any conversion is to take place for the purposes of allowing the enforcement of a judgment granted before February 2009, in Zimbabwe currency, it must be done at the rate prevailing on the date of payment, not the date of judgment….,.

The Legislature, in its wisdom, only enacted section 44A of the Reserve Bank Act, and did not see fit to provide a further framework to guide us on how to dispose of these matters. If the applicant's judgment has been rendered incapable of being satisfied through lack of a legislative framework that regulates its execution, then the applicant's remedies must lie with the Legislature.

The applicant seeks to use the date of judgment as the date on which conversion into US dollars is to be made, and seeks to use the rate of exchange allegedly applicable on that date. However, it is pertinent to note that, at the date of the judgment, January 2008, the use of United States dollars in Zimbabwe was not permitted, and any judgment given in United States dollars as being the currency in which the loss was sustained could only be satisfied by the payment of Zimbabwe currency as at that date.

This court lacks that jurisdictional basis to make any conversion as at the date of judgment because such conversion would, at that time, have been contrary to exchange control legislation. Any attempt to do a conversion as at the date of the judgment would in effect be to render a completely new judgment, in breach of the once and for all rule.

The 'once and for all rule' is a common law rule that stipulates that a plaintiff must claim, in a single action, compensation for the damage he has already suffered and the prospective loss which he reasonably expects to suffer in future. See Oslo Land Co Ltd v Union Government 1938 AD 584…,.; and Custom Credit Corporation (Pty) Ltd v Shembe1972 (3) SA 462 (A)…,.

In his book The Law of Delict, PROFESSOR BOBERG sums up the common law position as follows:

“A single wrongful act gives rise to a cause of action for all damage, past and future, that it causes. This means that a plaintiff cannot claim compensation piecemeal for his various losses as they occur: he must sue 'once and for all' for the whole of his damage, seeking redress not only for the harm he has already suffered (actual or accrued loss) but also for the harm he expects to suffer in the future (prospective loss). And if he succeeds he will generally be awarded damages in a lump sum, payable immediately, in respect of both past and future losses.”

See also Elvins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)…, where the court said:

“The 'once and for all' rule applies especially to common law actions for damages in delict, though it has also been applied to claims for damages for breach of contract….,. Expressed in relation to delictual claims, the rule is to the effect that in general a plaintiff must claim, in one action, all damages…,. This rule appears to have been introduced into our practice from English Law. Its introduction and the manner of its application by our courts have been subject to criticism…, but it is a well entrenched rule. Its purpose is to prevent a multiplicity of actions based upon a single cause of action to ensure that there is an end to litigation.”

In Dube v Banana 1998 (2) ZLR 92 (HC)…, the law in Zimbabwe was stated in the following terms:

“Our law recognizes the 'once and for all rule' which states that a plaintiff, when suing for damages, must sue for all his damages in a single action, both for loss suffered and for prospective loss…,. In my opinion, the once and for all rule should be modified. I consider this can best be done by an Act of Parliament rather than by 'judge-made law', which is, by its very nature, haphazard and piecemeal. The Law Development Commission of Zimbabwe issued a report entitled Report No. 43: 'Once and for all rule in claims for damages', in which, as the title suggests, it examined the rule and in which it made recommendations for its reform.”

Parliament has not intervened to change the law.

This court accepts as a correct application of the law to the circumstances of this case that the applicant has had his once and for all right to claim damages for the injuries which he sustained in the accident. He elected to litigate for those damages in 2008. He claimed those damages partly in Zimbabwe currency and partly in Botswana Pula. He received the awards he sought. He had a further opportunity to recast his case before the Supreme Court, in October 2010, when the appeal was heard, which was after dollarization. He chose not to do so, or to seek the leave of the Supreme Court to have the Zimbabwe dollar component of the judgment 'converted' to a currency that he could use. The Supreme Court, on application for its leave, would have had an opportunity for 'judge made law' to decide whether to remit the matter back to this court for evidence to be adduced on the question of the 'conversion' of the Zimbabwe dollar component of the judgment to a currency of the applicant's choice.

The applicant cannot now come back to this court seeking to change the judgment given to him. The applicant has already had his day in court he cannot now come for a second judgment arising out of the same circumstances as the first.

Res judicata is a rule that matters which have already been adjudicated upon between the same parties cannot be adjudicated again. It is a consequence of the 'once and for all rule'.

In Union Wine Ltd v Snell and Co Ltd 1990 (2) SA 189 (C)…, the Judge said:

“Although it is not clear from the cases whether the 'once and for all' rule is just a manifestation of the exceptio rei judicatae or whether it has a wider range than the latter, it is settled practice in South Africa that where a cause of action gives rise to more than one remedy a plaintiff who pursues one of those remedies and has obtained a judgment thereupon can be met with a plea of res judicata if he should institute a second action to pursue one of the other remedies.”

It is common cause that the parties before this court are the same as those before the court in 2008. It is common cause that the cause of action is the same and that damages are being sought pursuant to that cause of action. In the January 2008 judgment this court decided that the applicant had suffered damages which required to be redressed by the payment of Zimbabwe currency. This court accepts that all those issues are now res judicata and cannot be re-opened.

In the result, this court finds that it has no jurisdiction to grant the relief sought by the applicant, and that, no factual basis has been laid in the founding affidavit to justify granting the relief sought. The court is functus officio, the damages which the applicant seeks to be 'converted' to another currency now, were assessed and awarded in 2008. Any attempt to re-assess the award made in 2008 now, even if such assessment involves the calculation of the value of the damages in a different currency, would amount to changing the nature of the judgment given in 2008, a power which is only available to a superior court on appeal.

The matter cannot properly be determined by the improper use of this court's inherent jurisdiction.

This court's inherent jurisdiction does not cloak it with power to re-determine issues between the same parties which have already been conclusively determined. It may only do so on limited grounds where it is directed to do so by a higher court, the Supreme Court, and on very specific directions. There being no such direction from the Supreme Court, to this court, it is trite that the issues between the parties are res judicata.

This court has no jurisdiction to exercise the same principles of social justice and equity as the Labour Court, and any attempt to rely on labour matters, as the basis for inviting this court to exercise powers that are specific to and pertinent to the Labour Court will find no truck with this court.

In the circumstances of this case, where 'accident damages' were assessed and awarded as special damages and general damages, under the law of delict, it is my view that, there is no factual or legal basis in the papers filed of record, on which this court can 'convert' a 2008 judgment made in Zimbabwe currency to United States dollars.

Despite this finding, this court respectfully declines to exercise its discretion and grant punitive costs against the applicant as advocated for by counsel for the respondent.

Accordingly, the application is dismissed with costs on an ordinary scale.

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

HB184-15 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

Damages are either general or special, and different rules apply to general as opposed to special damages: The Quantum of Damages in Bodily and Injury Cases (3rd Ed) by CORBETT, BUCHNAN and GAUNTLETT. At page 99, the learned authors correctly observed: “In the case of damages which are capable of exact mathematical computation…, proper evidence establishing the loss…, ...

View Appeal
HH194-11 : ONISMO RUTSITO vs DELTA BEVERAGES, a division of DELTA CORPORATION LIMITED
Ruled By: BERE J

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 ...

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.

HH122-14 : ABIGAIL MVUDUDU vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

The principle of the “once and for all” rule…, according to PROFESSOR VISER and POTSIETER in the seminal text, Law of Damages (Juta and Co) 1993…, is defined as; “In claims for compensation or satisfaction arising out of delict, breach of contract, or other cause, the plaintiff must claim damages ...

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

As regards the quantum in maintenance matters, the approach to be adopted, on appeal, was laid out in Mentz v Simpson 1990 (4) SA 455 where HEFER JA held that the approach should be along the lines adopted in compensation cases as indicated in Sandler v Wholesale Coal Suppliers Ltd ...

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA
Ruled By: KUDYA J

In making my estimation, I am guided by the fact that Zimbabwe presently utilizes a multi currency regime in which the American dollar and the South African rand dominate. The purchasing power of these currencies has been distorted by Zimbabwe's unique environment which necessitates the use of currencies over which ...

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

The plaintiff's pleadings are a mess.

They do not comply with the strict requirements of the High Court rules. The face of the summons does not identify the 13 Others. The declaration does not do so either. In addition, it does not comply with the rules of court. It contains extraneous information and is argumentative in nature. A letter of suspension, three death certificates, a burial order and the Supreme Court judgment, SC66-02, concerning the plaintiff and the second defendant are attached to the declaration. It is in the format of a founding affidavit rather than a declaration.

When the defendants requested for further particulars, the plaintiff responded by applying for default judgment. The default judgment was refused and the plaintiff was directed to file the further particulars.

On receipt of the further particulars, on 11 January 2010, the defendants excepted on 13 January 2010. The plaintiff responded by excepting to the exception. It is unclear from the papers what became of the exception.

The defendants, however, proceeded to file a plea on 14 April 2010.

On 6 May 2010, the plaintiff filed a 23 paged document entitled “plaintiff's opposing affidavit to defendant's plea” and three further attachments. The plaintiff withdrew the notice of opposition in question on 24 May 2010 and proceeded to change what had been the opposing affidavit into a 23 paged replication.

Notwithstanding the state of the plaintiff's pleadings, the matter was referred to trial on 5 November 2010 on the defendants' pre-trial issues. The issues were:

1. Who are the plaintiffs in this matter.

2. Have they been lawfully dismissed.

3. If not, have they suffered any damages, and if so, in what amount and on what cause.

The pleadings are in such shambles because the plaintiff was not represented by a legal practitioner. Rather, he relied on his trade union styled Zimbabwe Federation of Trade Unions.

In order to determine the real issue between the parties, I condoned the state of the plaintiff's pleadings and proceeded with the trial.

At the commencement of trial, the only plaintiff in attendance was Shadreck Moyo. The other unnamed thirteen were in default. The trial proceeded on the basis that only one plaintiff was before the court.

This affected the claim in the summons.

On 16 November 2009, the plaintiff, Shadreck Moyo and 13 others, claimed damages and compensation and outstanding wages and salaries in the sum of US$3,5 million; a further sum of US$3,5 million for outstanding wages and salaries and compensation for loss of earnings for a period of 12 years, interest on these sums at the rate of 30 per centum per annum and costs of suit.

At the trial, the only plaintiff before me reduced the amounts claimed to US$275,375=08 for outstanding salaries and benefits and US$500,000 for general damages.

He set out the history of the matter, and, by consent, referred to exhibit 1, the 25-paged bundle of documents that the defendants intended to produce as an exhibit.

He was an employee of the second defendant.

On 3 and 4 December 1997, together with other employees, he participated in an illegal collective job action. On 5 January 1998, and in terms of section 3(1)(a) of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985, he was suspended from employment without pay or benefits pending an application to the Ministry of Labour for his dismissal.

On 6 January 1998, the second defendant, through its Chairman, the first defendant, applied to the Labour Relations Officer for an order terminating the employment of 15 employees amongst whom was the plaintiff.

A hearing was held, and, on 20 July 1998, the Labour Relations Officer ordered the reinstatement of all the 15 employees without loss of pay and benefits. The second defendant appealed to the Senior Labour Relations Officer. On 11 January 1999, the Senior Labour Relations Officer made the following determination:

“From the foregoing facts, the determination of the Labour Relations Officer is set aside in its entirety.

Appellant is granted permission to dismiss the 15 employees with effect from the date of suspension.

Appellant must pay the 15 employees all their terminal benefits within 14 days of receipt of this determination.”

The 15 employees appealed to the Labour Relations Tribunal.

On 25 September 2000, the Labour Relations Tribunal upheld the appeal of one of the 15 but dismissed the appeal of the other 14 - who included the plaintiff.

The 14 appealed to the Supreme Court, which dismissed their appeal in in its entirety on 18 June 2002 in the case of Shadreck Moyo and Thirteen Others v Central African Batteries (Pvt) Ltd SC66-02.

Shadreck Moyo averred that he only received a copy of the judgment on 3 September 2009 and not on any earlier date because his legal practitioner at the time, Mr Mabuye, of Mabuye and Associates, met an untimely death.

He alleged that, as he had not been dismissed from employment, he was entitled to damages in respect of lost earnings of US$275,375=08.

He produced exhibit 2 and 3 to justify his computation.

He averred that, by 30 October 2010, an employee in Grade 5 was in receipt of a salary of US$240=03. He used this salary to calculate what was due to him over the 155 months that he has been on suspension. He used the same salary to calculate his pay leave over the 12 years that he has been on suspension. He also used the same salary to calculate the thirteenth cheque bonus over 12 years. He stated that he was entitled to receive daily allowances at work for sadza, milk, tea and toiletries. He conservatively placed the cost at US$1 a day and multiplied this by the number of days he was supposed to be at work over the 12 year period.

On the general damages, he thumb sucked the figure of US$500,000 but based it on the prejudice that has visited the education of his children. He did not state the number of the children and how they were prejudiced....,.

He based his claim on failure to give his children an education.

In my view, this was a novel ground.

General damages are often awarded for the hurt, pain, indignity, and injury the claimant suffers that he attributes to the wrongful actions of the defendant.

All I can say is that the plaintiff did not properly think through his claim for general damages.

SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE
Ruled By: GWAUNZA JA

The respondent was employed by the appellant as manager of its Mutare branch. On 25 June 2002, a Mr G Good ("Mr Good"), who was the Director responsible for Sales and Marketing, addressed a letter to the respondent suspending him from duty with immediate effect without pay and benefits.

The suspension followed an investigation conducted at the instance of the appellant into the offences allegedly committed by the respondent. The offences essentially were dishonesty, theft of company property, and gross dereliction of duty.

Mr Good had considered both the findings of the investigation and the respondent's response to them, before suspending him. The letter of suspension referred to invited the respondent to report to the appellant's Mutare Branch for a disciplinary hearing on the 3rd of July 2002.

The hearing was to be held in terms of Step 2 of the "Disciplinary Structure and Levels of Authority", part of the appellant's Code of Conduct.

A day before that date, the respondent's legal practitioner addressed a letter to the appellant:

(a) Requesting a postponement of the hearing to 12 July 2002;

(b) Asking for confirmation that the respondent would be entitled to legal representation at the hearing; and

(c) Objecting to the respondent being represented at the hearing by a member of the Workers' Committee on the ground that, as a Branch Manager, he did not "belong" to the Workers' Committee. Also that, in any case, most of the allegations he was facing stemmed from his subordinates.

It would appear from the record that the request for legal representation of the respondent at the hearing, which was postponed to 10 July 2002, was denied.

The respondent's legal practitioners wrote again to the appellant on 9 July 2002, reiterating their argument that the respondent could not be represented by the Workers Committee at the disciplinary hearing. In the same letter the legal practitioners pointed out as follows:

"If indeed the idea of his being legal (sic) represented at the hearing is disagreeable, then we suggest that a mutually agreed managerial representative be appointed to represent him or alternatively the matter should be referred to the Ministry of Labour for adjudication.

Please note that under our advice Mr Gwekwerere will not be attending the hearing set for Wednesday the 10th July and will only attend a hearing which meets the minimum requirements of justice and fair play."

The disciplinary hearing was duly held, in the absence of the respondent, on 10 July 2002. He was found guilty as charged and dismissed from his employment.

After what I view as a half-hearted attempt to appeal to the Disciplinary Committee of the appellant, the respondent then applied to the High Court for a review of the proceedings leading to the decision to dismiss him. He cited two grounds of review, namely;

(i) That the procedure used in dismissing him was such as to deny him a fair opportunity to be heard; and

(ii) That no fair hearing was convened in terms of the Code of Conduct.

The court a quo found in favour of the respondent and ordered the appellant to reinstate him to his former employment without loss of salary or benefits.

Dissatisfied with the decision of the High Court, the appellant now appeals to this Court.

The appellant's main ground of appeal is that the court a quo erred in hearing the matter considering:

(a)...,.

(b)...,.

Another ground of appeal is that the court a quo should have, as is the norm, ordered payment of damages in lieu of reinstatement....,.

Damages in lieu of Reinstatement

The court a quo set aside the dismissal of the applicant "without loss of salary and benefits."

The appellant contends, correctly, that the effect of the order was for the appellant to reinstate the respondent.

It is contended also, that the order of the court a quo did not take into account the possibility that the working relationship between the parties might have irretrievably broken down due to mutual loss of confidence and trust between them. In that case, it is further contended, an alternative order for the payment of damages would have been more appropriate: see Muringi v Air Zimbabwe Corporation & Anor 1997 (2) ZLR 488 (S).

I find there is substance in this contention.

In casu, the respondent charged that Mr Good had exhibited ill-will towards him, while the appellant fully believed the respondent was guilty of dishonesty and gross dereliction of duty. In these circumstances, it is more probable than not, that a normal working relationship would not have been capable of restoration had the appellant been forced to take the respondent back.

The appellant has cited Girjac Services (Private) Limited v Mudzingwa 1999 (1) ZLR 243 (S) as authority for the proposition that where the reinstatement of an employee could not be tolerable to both parties, an alternative order for the payment of damages in lieu of reinstatement would be appropriate.

It is, in any case, now accepted, that, an order for reinstatement must be accompanied with an alternative order for the payment of damages in lieu of reinstatement: Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

An applicant must, however, make and argue a case for such alternative relief.

In the court a quo, the respondent sought an order, simply, that his dismissal be set aside without loss of salary and benefits. To his detriment, he did not consider, argue for, nor, therefore, claim, an alternative order for the payment of damages in lieu of reinstatement.

In Girjac Services (Private) Limited v Mudzingwa 1999 (1) ZLR 243 (S) this Court considered that very point and determined as follows:

"Since the issue of damages had not been argued, let alone raised in the papers, the learned judge (deciding, as he must have, that the court's intervention was properly sought) ought to have dismissed the application on the ground that the nature of the relief claimed was misconceived; leaving it to the respondent, if so advised, to pursue a claim for damages by way of fresh proceedings."

Thus, on the authority of this dictum, the learned judge a quo should, on the same basis, have dismissed the respondent's application.

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

The Lex Aquila; that old Roman law that provided for compensation for injury caused by someone's fault....,.For damages to be recoverable, the plaintiff must have suffered some recognisable injury. Such injury is not confined to physical damage. Mental damage is also included....,.To succeed in a claim for damages under the ...

The Lex Aquila; that old Roman law that provided for compensation for injury caused by someone's fault....,.

For damages to be recoverable, the plaintiff must have suffered some recognisable injury. Such injury is not confined to physical damage. Mental damage is also included....,.

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

(i) That the defendant committed a wrongful act;

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

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

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

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

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

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

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

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

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

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

The assessment of damages is one of the most perplexing task a court has to discharge. The broad principles that have been sampled from the several authorities here and abroad are:

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

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

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

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

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

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

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

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

Principles are easy to set out. They are not so easy to apply to the nuts and bolts of any given case....,.

At the end of it all, it boils down to the exercise of a value judgment by the court. It is a matter of discretion. A fair balance between the principles on the assessment of damages and the peculiar circumstances of the case should ensure that the exercise of that discretion is judicious, not capricious or whimsical....,.

Compensation must be tangible.

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

The plaintiff (Meikles) issued summons against the two defendants, Zimbabwe Stock Exchange (ZSE) and Alban Chirume (Chirume) claiming a declaratur and damages in the sum of $50,000,000.

The background to the matter is that on 16 February 2013, the defendants suspended the trading of Meikles shares on the Zimbabwe Stock Exchange.

The suspension was done without affording Meikles an opportunity to make representations before such a serious adverse action was taken.

On 26 February, the defendants placed an advert in the Herald Newspaper cautioning the public to “exercise caution in dealing with the plaintiff's shares.”

The suspension was eventually lifted.

The defendants entered appearance to defend and filed an exception on behalf of both defendants and a special plea in bar in respect of Alban Chirume.

I must, at the onset, deal with the nature of pleadings before me.

The plaintiff's summons and declarations is ten pages and to it is attached two letters as annexures. The defendants' exception is three pages and the second defendant's plea in bar is one page.

Order 3 Rule 11 of the High Court Rules 1971 on this issue provides:

“Before issue, every summons shall contain -

(a)…,.

(b)…,.

(c) A true and concise statement of the nature, extent, and grounds of the cause of action and the relief or remedies sought in the action.”

The author, ISAACS. in Beck's Theory and Principles of Pleading in Civil Actions, 5ed…, had this to say:

“17. Before the court is asked to decide any question which is in controversy between litigants it is in all cases necessary (except as hereinafter indicated) that the matter to be submitted to it for decision shall be clearly ascertained.

The plaintiff shall state, in concise terms, what facts he intends to rely on and to prove and the defendant shall do the same so that on the day of trial neither party shall be taken by surprise and that it may not be necessary to have the case adjourned, thereby causing wasted expense both litigants from which the State and the lawyers alone derive profit.

It has therefore often been stated by our courts, and it cannot be too often stated, that, the object of requiring the parties to file pleadings is to enable each side to come to trial prepared to meet the case of the other.”

The authors HERBASTEIN and Van WINSEN in The Civil Practice of the High Courts of South Africa, 5th ed…, stated the following about pleadings:

“The requisites of good pleading are said to be that it should contain a statement of -

(1) Fact, not law;

(2) Material facts only;

(3) Facts not evidence; and

(4) Facts stated in a summary form and that 'material facts' are all facts which must be proved in order to establish the ground of claim or defence.”

MATHONSI J, in Fungai Nhau v Memory Kipe and Anor HH73-15, confronted with what he terms long winding special plea in bar/abatement, had this to say:

“By definition, pleadings must be concise and to the point.

They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence.

Pleadings which are long-winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue, presenting such offensive pleadings when they have the aid of literature guiding the drafting of pleadings. I associate myself fully with the sentiments of MAKARAU JP (as she then was) in Chifamba v Mutasa & Ors HH16-08 (unreported) that:-

'Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter is that what they plead is what the law requires their clients to prove to sustain the remedy they seek…,.. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.'”

I associate myself fully with the above remarks.

Maybe if the legal practitioners in this matter had taken heed of the advice, the present application might not have been made....,.

The Exception

The defendants contend, that, the plaintiff failed to establish a cause of action against the defendants in that it failed to aver, with particularity, all the essential requirements for liability in a delictual claim.

They further contend that there is no link between the alleged negligence and the loss suffered by the plaintiff.

The declaration does not state the manner in which the patrimonial loss arose. The claim for the alleged fall in the share price of the plaintiff's shares cannot be made by the plaintiff as it does not own the shares.

The defendants contend that there is no recognizable cause of action which is contained in the plaintiff's declaration both in respect of the declaration and the claim for damages.

The plaintiff relies on section 14 of the High Court Act [Chapter 7:06] for the issuance of a declaration.

No right has been identified. Instead, the plaintiff seeks a declaration on a state of affairs which are factual and are in the past.

He relied on MDC v The President of the Republic of Zimbabwe 2007 (1) ZLR 257 (H) for his submissions.

The plaintiff also alleges a breach of administrative law duties in terms of Administrative Justice Act [Chapter 10:28] in order to justify the declaration and the claim for damages.

The relief provided for in terms of section 4 of the Administrative Justice Act does not include a declaratory order.

The plaintiff seeks to rely on section 66 of the Administrative Justice Act on the basis that once it establishes a breach, it must be granted the relief that it seeks.

That is a misreading of the Rules.

Section 66 follows section 65 which provides that the Zimbabwe Stock Exchange has power to make rules regulating the conduct of their members. The plaintiff cannot rely on section 66 as it gives power to the Zimbabwe Stock Exchange to control its own members. The power is not available to a member.

Counsel for the plaintiff submitted that, at this stage, the plaintiff has to set up a framework for the court to go by. Whether it can prove facts is another issue.

The Declaratur

He submitted that many grounds were pleaded, viz;

(i) That the defendants acted outside the law;

(ii) That the defendants did not accord the plaintiff the right to be heard;

(iii) That was in breach of section 3 of the Administrative Justice Act.

He further submitted that there is a concrete controversy between the parties. The action is not in the past and the grant of the declaratur raises the question of whether the defendant must pay damages or not.

The Damages Claim

Counsel for the plaintiff submitted that section 66 of the Administrative Justice Act is binding upon both the plaintiff and the defendants. The question would be whether the defendants are capable of breaching the rules in section 66. If so, then they caused damage to the plaintiff.

Whether they did so or not is a matter of evidence.

He further submitted that if one attacks the reputation of a company, shares of the company will suffer loss. The price at which a share trades is directly linked to how the company performs. The question of quantum is an actuarial issue.

Paragraph 22 of the declaration makes the allegation that the illegality has affected the plaintiff. The plaintiff claims for purely economic loss.

The Law

An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain a specific cause of action or the specific defence relied upon: see HERBSTEIN and Van WINSEN, The Civil Practice of the High Court of South Africa 5th ed…,.

The learned authors…, continue by saying:

“In order to disclose a cause of action, the pleading must set out every fact (material fact) which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment of the court.”

See also Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H); Dube v Banana 1998 (2) ZLR 92 (H); and Abrahamse & Sons v SA Railways & Harbours 1933 CPD 626.

The fundamental question to ask is whether the plaintiff had pleaded every material fact to be proved to entitle it to succeed in its claim.

The material facts are the facta probanda (the facts which are required to be proved in order to succeed in the cause of action) and not the facta probantia (the facts which would serve to prove the facta probanda); see Jowel v Bramwele Jones & Ors 1998 (1) SA 836 W…,.

The Declarator

In MDC v The President of Zimbabwe & Ors 2007 (1) ZLR 257 (H)…, MAKARAU JP…, set out the legal principles applicable when a declaratur is sought and the mental steps that the court must follow in determining whether to issue a declarator.

These principles include that the plaintiff must show that there is a right or obligation which becomes the object of enquiry. At p269C she made the following observation:

“It appears to me, from a reading of the above authorities, that what is required to be contended is a legal right and not the factual basis upon which a right may be found.”

The defendants contend that the plaintiff, in its pleadings, did not identify any right.

In casu, there can be no doubt that the legal right, subject to the claim, has been identified and properly articulated.

The plaintiff pleaded that the defendants did not accord the plaintiff the right to be heard. This is a principle established in the Constitution, Administrative Law, and in terms of common law.

The plaintiff has therefore established, that, there is a right whose existence has been pleaded. Whether the plaintiff will be able to establish that right, it is a different issue.

The Damages Claim

My view is that the plaintiff has pleaded the essential elements of a delictual claim. If it were to succeed in obtaining a declaratur, then, it could have established a link between the defendant's conduct and its loss.

As counsel for the plaintiff correctly pointed out, the issue of quantum is a matter of actuarial evidence.

The plaintiff pleaded, that, as a result of the unlawful activities of the defendants, which affected its share price, certain losses were caused to it which are recoverable from the plaintiff.

This is a purely delictual claim whereby the plaintiff alleges that its patrimony has been diminished by the conduct of the defendant and that it should be restored.

The concerns by the defendants, of lack of particularity, can be cured by making a request for further particulars.

I want to conclude by saying that one can sympathise with the position taken by the defendants in that although one can discern a cause of action for the summons and declaration, it is a long winding and inelegantly drafted pleadings.

For this reason, although the plaintiff has succeeded, I will depart from the norm that costs follow the cause. This is due to the fact, that, had the pleadings been drafted in terms of the Rules, the exception would not have been taken.

My view is that the plaintiff's pleading disclose a cause of action.

In the result, I will make the following order:

(1) The exception is hereby dismissed.

(2)...,.

(3) There is no order as to costs.

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

One of the first categoric statements on the assessment of damages for unlawful dismissal was enunciated by GUBBAY CJ in Gauntlet Security Services v Leonard 1997 (1) ZLR 583 (S) in which he said:“The employee is entitled to be awarded the amount of wages or salary he would have earned ...

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

4. THE RELIEF THAT WAS AWARDED

This was the most bizarre misdirection on the part of the trial magistrate.

The respondent brought a claim sounding in money in the sum of US$2,000. From whatever legal distance, it could not be missed. Having claimed US$2,000 and being awarded judgment “less 10 tins of paint of 5 liters (sic) which the first defendant and plaintiff's witnesses approximate were recovered” is a meaningless award to say the least.

How should the supposedly successful party execute such a judgment?

If the losing party wishes to satisfy the judgement, how does he/she compute what has to be paid?

The claim was premised on vicarious liability and both employee and employer were found liable. On the wording of the judgment, is liability joint or several or pro rata?

In view of the aforegoing numerous legal flaws, it is little wonder that the appellant appealed against the entire judgment; that the respondent filed a “consent to judgment” a few days prior to the day of reckoning; that we allowed the appeal as per the consent but indicated that a judgment was necessary and would follow for the benefit of the trial magistrate and other judicial officers in the same predicament which apparently cries out loud as a training need.

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J

This was an action matter. On the date of trial, it was postponed sine die by consent.

The defence had raised a special plea of prescription. The plaintiff was not conceding it. In terms of a timetable agreed upon, the parties would file their written submissions. Judgment on prescription would be delivered on the papers.

This now is that judgment.

The facts were common cause. The parties filed a Statement of Agreed Facts. They were these:

The defendant is a private company. It is responsible for, among other things, the distribution of electricity nationwide. In this regard, it runs and maintains, among others, electricity transmission conductors. The plaintiff sued it for damages arising out of injuries sustained by him when he had come into contact with live conductors.

The plaintiff's case was this:

On 11 March 2009, he was herding cattle in Mashava. He came into contact with naked electricity conductors. They were live and concealed by grass in the grazing field. He was electrocuted. He suffered severe burns from the chest to the knees. He stayed in hospital for six months. His right hand had to be amputated. The degree of his disability, as a result of those burns, was estimated at 40%.

The plaintiff alleged the defendant had been negligent in the following respects:

(i) It had failed to inspect and detect that its conductors had fallen onto the ground;

(ii) It had failed to secure the conductors so that they would not fall to the ground;

(iii) It had failed to clear the grass along its transmission lines so that fallen conductors could easily be detectable.

The plaintiff assessed his damages at $60,334 for pain and suffering, medical expenses, and the loss of amenities of life.

The plaintiff's summons was issued and served in March 2018. That was exactly nine years after the incident.

The defendant raised the special plea of prescription.

Generally, in terms of the Prescription Act [Chapter 8:11] an ordinary debt becomes prescribed after the lapse of three years from the date when the cause of action arose.

The defendant alleged the plaintiff's cause of action arose on the date of the incident.

On the merits, the defendant completely denied the plaintiff's allegations. It said he had been the author of his misfortune. He had wanted to steal the electricity conductors. The defendant denied they had fallen onto the ground. It claimed the plaintiff had tried to pull them down with his axe - from a height of about 2.5 metres above the ground. That was when he had been electrocuted. The defendant had actually reported the plaintiff to the police for theft. He had been arrested; but, in September 2016, the police had let him go for lack of evidence.

That was seven years later.

In his answer to the defence of prescription, the plaintiff maintained, that, the cause of action had arisen in September 2016 when he had been cleared by police. He said prescription had not begun to run when the incident had occurred.

Relying on cases such as Dube v Banana 1998 (2) ZLR 92 (H); Mukahlera v Clerk of Parliament & Ors HH107-07; and Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H) which defined “cause of action” as the combination or entire set of facts that are material for the plaintiff to prove in order to succeed in his action, the plaintiff argues, that, until the police had dropped the criminal charges against him, he would not have been able to discharge the burden upon him that it had been the defendant's negligence that had caused him the injury and consequent loss to him.

The plaintiff further relies on the cases of Thompson v Minister of Police 1971 (1) SA 371 (E) and Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H) for the argument that no action lies until the criminal proceedings have terminated in favour of a plaintiff.

Plainly, the plaintiff's argument on prescription is ill-conceived. His cause of action is manifestly prescribed.

Both parties are agreed, that, the plaintiff's cause of action is a 'debt' within the meaning of section 2 of the Prescription Act [Chapter 8:11], namely, being a “debt” that may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.

The plaintiff's claim arises from delict. It is an ordinary debt. The period of prescription is three years.

The plaintiff's cause of action arose when the incident happened.

In terms of section 16 of the Prescription Act, prescription begins to run as soon as a debt is due. A debt is due when the plaintiff has gathered all the entire set of facts about the cause of action as are material to prove his or her claim.

In this case, the plaintiff's cause of action was complete when he had gathered all the information as to, among other things, whose electricity conductors they were; allegedly that they had been in a state of neglect; allegedly that they had been lying naked on the ground whilst concealed; the sort of injuries that he had sustained; the monetary loss that he had incurred, or would incur, and so on. Those are the kind of material facts as are contemplated by cases such as Dube v Banana 1998 (2) ZLR 92 (H).

If three years elapsed before the plaintiff had taken action or interrupted prescription, then, his cause of action would be extinguished. The lapsing of a debt, by prescription, is absolute, unless one can show that prescription does not apply or that the running of it was delayed or interrupted.

Section 17 of the Prescription Act provides for situations where the completion of the period of prescription is delayed. None of them applies to the plaintiff's case.

Sections 18 and 19 of the Prescription Act provide for situations where the running of prescription is interrupted. These are when the debtor acknowledges liability and when the creditor serves process on the debtor claiming the debt.

The plaintiff expressly concedes that none of these applies to him either.

That should mark the end of his case – but, his counsel has crafted the argument that prescription should not be raised against the plaintiff because his cause of action only arose in September 2016 when the police abandoned the criminal case against him.

That the plaintiff had been arrested by the police for the alleged theft of the conductors and/or that it had taken the police seven years to clear him is not one of the factors that interrupts or delays the running of prescription.

Whilst a single incident may give rise to multiple types of proceedings, including criminal and civil, the outcome of one does not bind the other or others.

The police and the prosecution could well have been pursuing a criminal case. The plaintiff was not precluded from pursuing his civil claim timeously after he had become satisfied that his injury and loss had arisen by reason of the defendant's negligent conduct.

The plaintiff's arguments, that, until the police had exonerated him of the theft allegations, it was not known whether it was him or the defendant who had been to blame for his electrocution or that without having been so exonerated he would not have been able to prove his cause of action, are thoroughly ill-informed.

He himself knew, and had concluded, that, he had been electrocuted by reason of the defendant's negligence. He did not need the police or anyone to tell him that. Furthermore, and at any rate, even after being exonerated, he would still need to prove liability on the merits as the defendant was contesting it.

Cases like Thompson v Minister of Police 1971 (1) SA 371 (E) and Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H) are completely inapposite and the plaintiff's argument misconceived.

These cases were concerned with situations, where, one sues the police and its parent ministry in respect of wrongful conduct, such as wrongful arrest or malicious prosecution. In such situations, until the criminal proceedings terminate in favour of the plaintiff, he or she would be hard pressed to prove wrongfulness or malice on the part of the police. That is why he or she has to wait for the proceedings to end, and to end in his or her favour.

In casu, the plaintiff's situation is different and incomparable.

It is the finding of this court, that, the plaintiff's claim has prescribed. Therefore, it is hereby dismissed with costs.

Back Main menu

Law Portal
Zimbabwe

Damages re: Assessment and Evidence of Damages iro Approach and the Once and For All Rule

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

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

HB96-09 : TISO NKALA vs WINNIE SEBATA and BEN DUBE
Ruled By: NDOU J

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

HH33-09 : LOUIS MADZONGO vs GLADYS BESENT
Ruled By: CHATUKUTA J

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

HH181-10 : CEDRIC STEELE vs EDWARD HAMADZIRIPI CHIPOPE and PATRICK MADZIMA
Ruled By: MAKONI J

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

HH16-13 : KEMBO MOHADI vs THE STANDARD and STANDARD PRESS (PVT) LTD and DAVISON MARUZIVA and EDDIE CROSS
Ruled By: ZHOU J

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

HH55-14 : PRINCE CHINEMBIRI and PARADZI MUPANDENYAMA and ALEXIO TEMBO and KUDAKWASHE PFUNDE and CLEMENCE SHAMU and ORCHARD KANJADO vs CHANCE NCUBE and DANIUS RUNGANO and ZETDC
Ruled By: MATANDA-MOYO J

Appealed
SC27-14 : WYNINA (PVT) LTD vs MBCA BANK LIMITED
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

Appealed
SC42-13 : DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) vs ONISMO RUTSITO
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

View Appeal
SC31-14 : BRENNAN'S DIESEL SERVICES (PVT) LTD vs TENDA BUS SERVICES (PVT) LTD
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

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

HH99-15 : COSMAS NYAMBARA vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL and DETECTIVE CONSTABLE MUUYA and DETECTIVE SEARGENT MUSEKIWA
Ruled By: DUBE J

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

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

HH189-15 : ELTON NYABUSHA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY
Ruled By: MATANDA-MOYO J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

HB184-15 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

View Appeal
HH194-11 : ONISMO RUTSITO vs DELTA BEVERAGES, a division of DELTA CORPORATION LIMITED
Ruled By: BERE J

HH122-14 : ABIGAIL MVUDUDU vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA
Ruled By: KUDYA J

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE
Ruled By: GWAUNZA JA

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

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J

Categories

Law Portal Zimbabwe

Damages re: Assessment and Evidence of Damages iro Approach and the Once and For All Rule

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

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED Ruled By: CHITAKUNYE J

HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY Ruled By: CHITAKUNYE J

HB96-09 : TISO NKALA vs WINNIE SEBATA and BEN DUBE Ruled By: NDOU J

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA Ruled By: GUVAVA J

HH33-09 : LOUIS MADZONGO vs GLADYS BESENT Ruled By: CHATUKUTA J

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

HH181-10 : CEDRIC STEELE vs EDWARD HAMADZIRIPI CHIPOPE and PATRICK MADZIMA Ruled By: MAKONI J

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

HH16-13 : KEMBO MOHADI vs THE STANDARD and STANDARD PRESS (PVT) LTD and DAVISON MARUZIVA and EDDIE CROSS Ruled By: ZHOU J

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

HH55-14 : PRINCE CHINEMBIRI and PARADZI MUPANDENYAMA and ALEXIO TEMBO and KUDAKWASHE PFUNDE and CLEMENCE SHAMU and ORCHARD KANJADO vs CHANCE NCUBE and DANIUS RUNGANO and ZETDC Ruled By: MATANDA-MOYO J

Appealed SC27-14 : WYNINA (PVT) LTD vs MBCA BANK LIMITED Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

Appealed SC42-13 : DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) vs ONISMO RUTSITO Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

View Appeal SC31-14 : BRENNAN'S DIESEL SERVICES (PVT) LTD vs TENDA BUS SERVICES (PVT) LTD Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

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

HH99-15 : COSMAS NYAMBARA vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL and DETECTIVE CONSTABLE MUUYA and DETECTIVE SEARGENT MUSEKIWA Ruled By: DUBE J

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI Ruled By: MUSAKWA J

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE Ruled By: MAFUSIRE J

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA Ruled By: MAKARAU JA, GOWORA JA and BERE JA

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

HH189-15 : ELTON NYABUSHA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY Ruled By: MATANDA-MOYO J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST Ruled By: CHIGUMBA J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

HB184-15 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: NDOU J

View Appeal HH194-11 : ONISMO RUTSITO vs DELTA BEVERAGES, a division of DELTA CORPORATION LIMITED Ruled By: BERE J

HH122-14 : ABIGAIL MVUDUDU vs ZIMBABWE BROADCASTING HOLDINGS Ruled By: MAKONI J

Appealed SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: GARWE JA, BHUNU JA and MAKONI JA

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA Ruled By: KUDYA J

Appealed HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD Ruled By: KUDYA J

SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE Ruled By: GWAUNZA JA

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

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME Ruled By: MAKONI J

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI Ruled By: MUTEMA J and MOYO J

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY Ruled By: MAFUSIRE J

Categories

Your Donation.

Law Portal
Zimbabwe

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

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

HB96-09 : TISO NKALA vs WINNIE SEBATA and BEN DUBE
Ruled By: NDOU J

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

HH33-09 : LOUIS MADZONGO vs GLADYS BESENT
Ruled By: CHATUKUTA J

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

HH181-10 : CEDRIC STEELE vs EDWARD HAMADZIRIPI CHIPOPE and PATRICK MADZIMA
Ruled By: MAKONI J

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

HH16-13 : KEMBO MOHADI vs THE STANDARD and STANDARD PRESS (PVT) LTD and DAVISON MARUZIVA and EDDIE CROSS
Ruled By: ZHOU J

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

HH55-14 : PRINCE CHINEMBIRI and PARADZI MUPANDENYAMA and ALEXIO TEMBO and KUDAKWASHE PFUNDE and CLEMENCE SHAMU and ORCHARD KANJADO vs CHANCE NCUBE and DANIUS RUNGANO and ZETDC
Ruled By: MATANDA-MOYO J

Appealed
SC27-14 : WYNINA (PVT) LTD vs MBCA BANK LIMITED
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

Appealed
SC42-13 : DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) vs ONISMO RUTSITO
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

View Appeal
SC31-14 : BRENNAN'S DIESEL SERVICES (PVT) LTD vs TENDA BUS SERVICES (PVT) LTD
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

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

HH99-15 : COSMAS NYAMBARA vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER GENERAL and DETECTIVE CONSTABLE MUUYA and DETECTIVE SEARGENT MUSEKIWA
Ruled By: DUBE J

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

HH260-14 : UZ – UCSF COLLABORATIVE RESEARCH PROGRAMME vs ISDORE HUSAIWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

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

HH189-15 : ELTON NYABUSHA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY
Ruled By: MATANDA-MOYO J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

HB184-15 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

View Appeal
HH194-11 : ONISMO RUTSITO vs DELTA BEVERAGES, a division of DELTA CORPORATION LIMITED
Ruled By: BERE J

HH122-14 : ABIGAIL MVUDUDU vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA
Ruled By: KUDYA J

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE
Ruled By: GWAUNZA JA

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

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J