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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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.
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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.
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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).
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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.
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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 ...
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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.
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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 ...
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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; ...
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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 ...
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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 ...
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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…, ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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