The
plaintiff has issued summons against the defendant for the return of
its trailer registration number 467-556M which had been leased to the
defendant and which lease agreement has now been cancelled.
Despite
demand, the defendant has failed and/or refused to return the said
trailer. Alternatively, the plaintiff prays that the value of the
trailer should be paid to it.
The
basis of the claim is that the trailer belongs to the plaintiff. Upon
the expiry of the lease the trailer should have been returned to the
owner.
The
issues for determination were agreed upon by the parties at the
pre-trial conference. These are:
(a)
Whether the trailer in question was stolen at all or alternatively
lost as a result of negligence or any other actionable wrong on the
part of the defendant.
(b)
Whether the fact that the trailer was supposed to be insured absolves
the defendant of his duty of care and/or risk in respect of the said
trailer.
(c)
Quantum of damages which may be awarded to the plaintiff.
The
onus of proof for issues (a) and (b) is on the defendant and (c) on
the plaintiff.
The
plaintiff called Martin Jonathan Rowland as a witness. He is the
Managing Director, Commercial and Industrial Holdings of the
plaintiff company. He said at the time of the transaction, Mr Mhaka
dealt with the late Mr Schoffield. At some stage, the plaintiff
became aware of the fact that vehicles leased out to the defendant
were not being properly maintained and they
were damaged in some instances. When they realized that the agreement
was not working, they called for the return of the final vehicle i.e.
the trailer subject matter of these proceedings.
The
defendant informed them that the vehicle had been stolen. The
plaintiff was only informed, in 2003, that the trailer was stolen. He
said the duty to insure the trailer was on the plaintiff company.
Although the risk of loss was on the plaintiff company, he said the
defendant had a duty to timeously inform the plaintiff of the theft,
which the defendant did not do in this case. This deprived the
plaintiff company the right to claim from its insurers and this seems
to be the argument.
This
witness said if the report of theft had been made to the late Mr
Schoffield, the latter would have reported at their company monthly
meetings where legal issues are discussed. He said for an insurance
claim to be made, the defendant was supposed to give full details of
the theft and do so on time. He said the defendant did not provide
the date of the theft. They were not provided with police initial
report details. They were not sure whether the trailer was stolen or
not. They demanded the return of the trailer, failing which
replacement value of the trailer.
Under
cross-examination, he conceded that there is no clause in the
agreement which imposes a duty on the defendant to report theft to
the plaintiff, let alone doing so timeously. He stated that the
plaintiff did not, on its own, report the theft of the trailer to the
police because they were not sure there was a theft; it was up to the
defendant to report as the custodian of the trailer. When asked
whether the plaintiff had bought a replacement trailer he said it was
difficult to say because the plaintiff buys trailers regularly but
from 2002 they bought trailers in 2004.
The
plaintiff also called Dabpson Kanyoka, the Bulawayo Branch Manager,
Zimnat Lion Insurance Company. He placed the value of the trailer at
$20 million at the time he testified. Under cross-examination he
conceded that he is not an expert in such assessments and that he
relied on assessments done by engineers.
His
testimony does not take the matter any further.
The
plaintiff then called Vongai Gapare, a former senior underwriter at
Zimnat. She authored the letter, exhibit 3, which gave the current
market value of the trailer as Z$2.2 million in September 2006. She
conceded that she did not consult the experts as the matter was
urgent. She said she just used “information at hand” to arrive at
that figure. She, however, later consulted an engineer who placed the
value at $9 million.
Her
testimony does not take the matter any further. Her evaluation is
“off-the-cuff” and she is not, in any event, an expert in the
field.
The
plaintiff then called Bhekimpilo Moyo. He said he does vehicle
valuation in assessments. He is a qualified vehicle body repairer and
has been in the industry for over ten (10) years. He did a desk
evaluation for the trailer in question at the behest of Zimnat Lion.
He arrived at the conclusion that a similar trailer would be valued
at Z$9,5 million.
The
Managing Director of the defendant company, Amos Mhaka, testified. He
said at the time the agreement was entered into it was not explained
to him that he had a duty to notify the plaintiff on time of
any theft or loss of the trailer. He said this was not put in black
and white either. He said the trailer was stolen and he reported the
theft to the police. He took the police reference number to the late
Mr Schoffield. He said the trailer was stolen between August and
October 2004. He said the trailer was stolen when it was en route
from Harare to Bulawayo. The trailer developed mechanical problems
around Battlefields area. His employee, the late Jonathan Mhlanga,
was driving at the time. When Jonathan became aware of the theft of
the trailer, he reported the matter to Battlefields Police before he
contacted him.
The
late Constable Mashati was dealing with the matter and he required
that the registration book and the insurance policy be submitted.
This information was recorded by then Constable Mushati on a piece of
paper. When Jonathan Mhlanga gave him this piece of paper he (i.e.
the witness) telephoned Mr Schoffield and eventually went to see him
at his Harare office. Mr Schoffield told him that he had some urgent
business to attend to in Mutare and told him to leave the police
reference note in his office and he indicated that he would attend to
the matter. When, in 2003, the defendant started receiving letters
from the plaintiff demanding the return of the trailer, he assigned a
driver to get the police reference details at Battlefields Police
Station. The driver was informed that the police detail dealing with
the matter had passed on. He said this demand for the return of the
trailer was after he had given the police reference to the late Mr
Schoffield. He did not keep a copy thereof.
He
said that at the time of the issuance of summons in this matter the
defendant was no longer paying rental for the trailer. The defendant
last paid rentals in 2002.
Under
cross-examination it became apparent that he was not being truthful
on the fate of the piece of paper allegedly obtained from the late
Constable Mushati. Whilst in his testimony, as alluded to above, he
said he gave it to the late Mr Schoffield, in the pleadings it is the
defendant's case that it was lost or misplaced. In fact, the
pleadings are that the original was given to Mr Schoffield and he
remained with a copy yet he now disputes ever remaining with a copy.
This
discrepancy is on a material issue of whether the plaintiff was ever
notified of the alleged theft prior their demand for the return of
the trailer.
Mr
Mhaka is the sole witness for the defendant.
As
alluded to above, he confirmed the existence of the lease agreement
and that he personally dealt with the plaintiff concerning this lease
agreement. He, however, does not have first-hand knowledge of the
theft of the trailer. He never personally made efforts to verify
whether or not the driver had indeed made a report to the police. All
his evidence around that issue is hearsay.
The
driver of the truck on that day in question is Jonathan Mhlanga who
is late. The other person who could have enlightened the court about
the police report is a constable who is also late.
He
said enquiries made at the Battlefields Police Station by the
defendant have not yielded anything. There is no record at the police
station that any report was ever made.
Against
this background, the plaintiff denies that the trailer was stolen and
demands that the defendant should prove that fact by at least
producing a police report.
Mr
Mhaka does not have anything in his files on the police report i.e.
references. Mr Mhaka said he notified director, Mr Schoffield, who,
like other key witnesses, is late. The late Mr Schoffield did not
usually deal with such matters and Mr Mhaka could not give a
satisfactory explanation why he did not deal with the other officials
with whom he had dealt with on a day-to-day basis before. He simply
gave the reasons that the relations between them had soured hence the
need to deal with defendant's director, Mr Schoffield.
It
seems highly unlikely that people who only know all the evidence of
whether or not the trailer was stolen and the police report that was
made, and Mr Schoffield, have taken those secrets to their graves. It
is also highly unlikely that upon receiving information about the
theft of the 20 tonne trailer, which was so central or important to
the business and the particular contract, Mr Mhaka would not himself
have personally made a follow-up. This is moreso in view of the fact
that the relations between the plaintiff and the defendant have
soured.
Mr
Mhaka confirmed, under cross-examination, that at that point he did
not trust the plaintiff as he felt that they had treated the
defendant badly before. He felt that the plaintiff had swindled the
defendant on the payment for the trailer. All this is more reason why
he should have been more meticulous in keeping records and in dealing
with the plaintiff.
In
short, the defendant has failed to discharge the onus resting on it
to prove the theft.
It
is common cause that the plaintiff would be responsible for insuring
the trailer and not the contents of the trailer. The trailer was
insured according to the evidence of Mr Rowland. A claim could not be
made because a report to the plaintiff was not made timeously. To
date, there is no evidence of any police report - which is the main
requirement of the insurers. In any event, this is neither here nor
there and does not have a bearing on this matter;
(i)
Firstly, the defendant has not proved, on a balance of probabilities,
that the trailer was stolen. As alluded to above, such onus was on
the defendant.
(ii)
Secondly, even if it was, the plaintiff was not timeously informed of
the alleged theft.
(iii)
Thirdly, even if the plaintiff had been informed, this would not
absolve the liability of the defendant.
In
Principles of Delict by JONATHAN BURCHELL (1993), Juta & Co…,
the learned author rightly stated:
“The
general principle underlying the award of damages under the aquilian
action (and the law of delict as a whole) is one of compensation to
the plaintiff. But, frequently, a person injured may have his losses
partially or wholly met from outside or collateral sources other than
the said damages. Examples of such collateral benefits are: gifts or
donations, pension, sick pay benefits, insurance (both indemnity and
none indemnity) and medical and…,.
The
general rule is that the receipt of money by the plaintiff from an
insurance company is not deductable from his damages. The plaintiff
has to exercise foresight in taking out insurance cover, for which he
has paid premiums on a regular basis and shall not be deprived of the
benefit of the cover. Nor should the defendant be spared for
liability for his negligence simply because he has, by chance injured
a foresighted individual whose losses are covered by insurance.”
Within
the context of indemnity insurance, with the rules of subrogation
applying, the insurer, once it has paid out the insurance cover to
the plaintiff, is placed in the shoes of the plaintiff and can pursue
the claim against the defendant to recoup its own loss. In so doing,
the insurer can claim in the name of the plaintiff.
It
is clear, therefore, that the negligence of the defendant is not
absolved by the new effect insurance –
Mackenzie
v SA Taxicab
1910 WLD 323 and Dippenaar
v Shield Insurance Co.
1979 (2) SA 904 (A).
Benefits
in terms of indemnity insurance, which a plaintiff has received or
will probably receive on account of his loss, are seen as
res
inter alios acta
i.e
they are not taken into account in reducing his damages – Ackerman
v Loubser
1918 OPD 31; Teper
v McGees Motors
1956
(1) SA 738 (C); Van
Dyk v Cordier
1965 (3) SA 723 (O); Law
of Delict
by J NEETHLING, J M POTGIETER and P J VISSER (2nd
Ed).., and A
Guide to the Zimbabwean Law of Delict
by G FELTOE (3rd
Ed)..,.
All
in all, the defendant remains in possession of the plaintiff's
trailer and has not returned it.
In
the absence of any other probable explanation, which is supported by
direct evidence, an award must be made in favour of the plaintiff.
On
the question of the quantum of damages the onus is on the plaintiff.
Different
valuations of the trailer were given during the pleadings and the
trial on account of the rapid escalating rate and re-denomination of
the currency. The Zimbabwean dollar is no longer in use. The court
has taken judicial notice of this notorious fact – Ndawana
v Nasho & Ors
2000 (1) ZLR 23 (H) and
Reza
v Nyangani
2001
(1) ZLR 202 (S). This court has to strive to arrive at an equitable
remedy based on recent valuation. The difficulty is that the recent
value given during the trial was denominated in Zimbabwean dollars
which is no longer in use. The court has to find a way of obviating
the problem created by this intervening event.
Accordingly,
it is ordered that:
(1)
The defendant be and is hereby ordered to return the plaintiff's
trailer registration number 467-556M within seven days of service of
this order.
(2)
Failing compliance with paragraph (1) above, the defendant is hereby
ordered to pay the plaintiff the current market value of a similar
trailer as assessed by the average of evaluations of three
independent qualified motor vehicle evaluators, with interest on the
figure tempore
morae
from
16 March 2005.
(3)
The defendant will bear the costs of this suit on the ordinary scale.
