Liability, Negligence or Dolus re: Voluntary Assumption of Risk or Volenti Non Fit Injuria

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.

It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing the plaintiff to litigate on the matter. By the time the litigation was resolved, in favour of the plaintiff, the imported resin, which remained uncleared for customs purposes, had become moribund and useless to the importer, thereby causing the total loss that was claimed in the summons under various heads…,.

The claim was defended primarily on the basis, that, in seeking to levy duty on a higher tariff than previously levied, the defendant was not acting with malice and that its actions were not wrongful and unlawful to ground an action in delict. Further, it was denied that the containers of the imported resin were presented to the defendant for the purposes of customs clearance.

The facts giving rise to the suit between the parties are largely common cause.

The plaintiff is an established public company, specializing in the production and manufacture of timber and timber products. It is listed on the local bourse. As part of its manufacturing processes, it uses a certain resin (hereinafter referred to as “the chemical”), that is imported into the country and import duty paid.

Over a period of about ten years, the plaintiff imported this resin at a steady 5% duty payable to the defendant.

In or about February 2005, the plaintiff received four containers of the imported chemical. When it presented the chemicals to the defendant for clearance, duty was levied not on the usual and expected 5% but at 25%.

The plaintiff approached this court for adjudication on the correct level of duty payable and its contentions were upheld. The defendant immediately noted an appeal against the decision of this court. In the meanwhile, the parties reached an agreement that the four containers be released upon the plaintiff paying a deposit against the required duty.

Again, in the meanwhile, in May 2005, the plaintiff imported into the country ten other containers of the chemical while the legal wrangle was still on. There is a dispute as to whether these ten containers were presented for customs clearance or not….,.

On 7 April 2006, the Supreme Court handed down its judgment, upholding the High Court judgment and vindicating the plaintiff's stance.

In June 2006, the ten containers of the chemical were cleared by the defendant at 5% duty. It was then discovered that the chemical had become moribund and valueless to the importer.

On 27 September 2006, the plaintiff issued summons against the defendant as detailed above.

In the summons, the plaintiff claimed the sum of US$285,123=76 as the replacement value of the chemical that went moribund; US$20,016=44 as the value of orders that were lost as a result of the plaintiff's failure to use the moribund chemical; and the sum of US$404,807=80 as damages for lost business.

At the trial of the matter, three issues had to be resolved by evidence. These were;

(i) Firstly, whether the order issued by this court also covered the ten containers, the subject of this dispute; and

(ii) Secondly, whether the ten containers were presented to the defendant for duty purposes;

(iii) Thirdly, in issue was the quantum of damages that the plaintiff would be entitled to in the event that the defendant was found liable.

In support of its case, the plaintiff led evidence, firstly, from one Joseph Chikwana. He was the plaintiff's Purchasing Manager at the time the dispute arose.

His testimony was largely to reiterate the facts that are common cause in this dispute concerning the first four containers of the chemical. Regarding the ten containers forming the subject of this suit, he testified as follows:

These were imported about six months after the first four and in respect of which the parties were before this court, locked in litigation over the correct tariff to be used for calculating duty. The ten containers came through Beira, and, when they arrived in Mutare, the plaintiff sought to have them cleared. The plaintiff did not submit any documents to the defendant as there was a pending case between the parties. The containers were placed in a bonded warehouse.

When the customs clearance agent came back with the news of the stalemate between the parties, the witness personally visited the defendant's office and was attended to by a Mr Chamboko and a lady officer who was assisting Mr Chamboko. The discussions referred to the pending case and the parties felt that they could not move from that position due to the pending litigation. The defendant demanded duty at the higher rate which the plaintiff was not in a position to pay at the time.

The witness was involved in the formulation of the claims that the plaintiff finally brought against the defendant.

He explained that the claim for $22 billion was the fees that the plaintiff paid to the agent to have the containers released.

During the period of the dispute, the plaintiff had pending orders from its overseas customers. Because of the time it took to resolve the issue, the plaintiff was unable to meet the orders, resulting in the orders being cancelled. The value of the lost orders was captured in a spread sheet that the plaintiff's Finance Department generated. The spread sheet was adduced into evidence. The value of the lost orders was in the sum of US$74,134=97.

Using a profit margin of 27%, the plaintiff claimed damages in the sum of US$20,016=44 under this head.

The chemicals expired whilst they were in the containers and awaiting clearance. The value of replacing the chemical was in the sum of US$285,123=76.

During the time that the parties were locked in the dispute, the plaintiff could not produce most of its products and thus lost business due to the unavailability of its products. It calculated this loss at US$404,807=80. Another spread sheet was adduced into evidence, through the witness, showing the plaintiff's calculation of the lost business.

The plaintiff tried to mitigate its damages by borrowing glue from other timber processing companies.

When the judgment of the High Court became available, in November 2005, the witness took the judgment to the defendant, seeking release of the ten containers. He was informed that the defendant would appeal against the judgment - which they did.

Pending determination of the appeal, the plaintiff again approached the defendant for the release of the containers. The approach was not successful leading the plaintiff to approach this court on a certificate of urgency. No judgment was handed down in the matter which was heard on 8 December 2005.

In my view, the witness is an articulate and confident man who fared well under cross examination. He was forthright in his answers to questions put to him under cross-examination and readily admitted to some of the shortcomings in the assumptions that had been used in calculating the damages claimed by the plaintiff. While I found the witness unnecessarily verbose in his responses, I have no reason to disbelieve his evidence.

The second witness to testify on the plaintiff's behalf was one Prince Nyemba. At the time, he was the plaintiff's Finance Director. He joined the plaintiff's employment in August 2006 and was not yet with the plaintiff in May 2005 when the events forming the subject of this trial were unfolding. The plaintiff naturally keeps records of its transactions and the witness had access to these.

The witness then testified as to what the plaintiff's records revealed its loss to be as a result of the delay in having the glue released to it by the defendant.

Under cross-examination, the witness admitted that the claims by the plaintiff had been calculated without taking into account certain exigencies and variables such as changing exchange rates and fluctuating costs of production.

Due to the fact that the witness was not an employee of the plaintiff at the relevant time, and also due to the concessions that he made under cross examination, that the plaintiff's claim was aggressively if not inaccurately calculated, I shall place marginal probative value on his testimony and will only rely on it where it is corroborated by other reliable evidence.

After the testimony of this witness, the plaintiff closed its case.

The defendant opened its case by calling one Clements Kwenda. He is employed by the defendant as a team Leader at Forbes Border Post, having joined the then Department of Customs and Excise in 1990.

The witness detailed the procedures that an importer of goods into the country has to observe before his or her goods can be cleared. Regarding the claim before the court, he testified as follows:

The plaintiff imported two separate lots of chemicals. Firstly, it imported four containers of the chemicals. An entry for the four was submitted to the defendant. A dispute arose as the defendant called for duty at a rate higher than the plaintiff was offering. The matter was then referred to the courts. At a later stage, and while the matter was pending before the court, the plaintiff paid a deposit for the release of the four containers.

As at 25 February 2005, the plaintiff was aware that it could have the ten containers released upon payment of a deposit.

In respect of the ten containers, Bills of Entry for the ten were submitted to the defendant on 29 June 2006. The containers were all cleared on the same date. Prior to this, he was unaware of any letter that the plaintiff had written to the defendant seeking the release of the ten containers. He was aware that a letter had been addressed to the defendant's Harare office though he had not seen it.

Under cross-examination, the witness could not dispute, that, for the previous eleven years the plaintiff had imported the chemical at 5% duty. In his opinion, the officer who inspected the goods and asked for duty at a higher rate was simply doing his work and did not err. He did not agree that the departure from the classification that had been used for the past eleven years had been done with an improper motive.

The witness gave his evidence well. I find that most of his testimony was on facts that are common cause. He was clear as to what transpired between the parties although his attempt to draw a distinction between the Harare and the Mutare offices of the defendant was without basis. On the main, I will rely on the testimony of this witness.

The defendant called the testimony of one Clifford Mubaiwa Chamboko next. He is the man in charge of the defendant's offices in Mutare.

On 17 February 2005, a meeting was held in his office pertaining to the clearance of the four containers. The plaintiff's first witness and the clearing agent were in attendance. The tariff dispute between the parties was discussed.

At no stage did the defendant refuse to accept the entry relating to the ten containers. There was no meeting between the parties regarding the ten containers.

Under cross-examination, the witness maintained that the defendant was justified in re-classifying the imported chemicals. He pointed out that the classification of imports is a complex matter and that for that matter, errors would occur.

The witness gave his evidence in a very measured way; so measured was he, that, at times, he appeared slow. Despite this, I have no reason to disbelieve his evidence as, in my view, there are few material disputes of facts in this matter.

After the testimony of this witness, the defendant closed its case.

At the pre–trial conference of the matter, eight issues were identified for trial as follows:

1. Whether the declarator issued by the Honourable Justice Hungwe, under case no HC838/05, covered the four containers or the ten containers, which are the subject matter of this dispute;

2. Whether the containers were declared for duty purposes;

3. What is the procedure to be followed by an importer of goods in circumstances where there is a dispute in relation to a consignment that has been declared for duty purposes;

4. Whether, in the absence of compliance with such procedure, any liability attaches to the defendant;

5. Whether the defendant is liable to the plaintiff in respect of contents (that) became moribund as well as the customs clearance, storage charges and demurrage charges associated with the containers;

6. Whether the defendant is liable to the plaintiff for special damages in respect of cancelled orders and lost business;

7. In respect of all damages, the quantum of damages that may be awarded to the plaintiff, if any; and

8. What order is to be made as regards costs.

In my view, the issue that falls for determination in this trial, in the main, is whether or not the defendant's conduct was culpable under the lex Aquilia. If so, what damages did the plaintiff suffer?

I narrow down the issues in this manner as, in my view, resolution of issues one to four, as settled at the pre-trial conference, will not resolve the dispute between the parties.

Having listened to the evidence of the parties, it appears clear to me that while the declarator by HUNGWE J specifically dealt with the four containers in respect of which a dispute had been formally declared, his ruling, and that of the Supreme Court on the matter would bind the parties in the importation of similar chemicals and would thus have a direct bearing on the importation of the ten containers.

I also note that while the ten containers may not have been formally presented to the defendant for clearance, the parties were locked in a dispute over the four containers in respect of the duty payable, and, on a practical note, the defendant was most unlikely to accept duty at the lower tariff pending determination of the litigation that was then unfolding between the parties....,.

In his written submissions, the plaintiff's counsel makes a sweeping statement to the effect that the conduct by the defendant was in breach of a clear statutory provision and that such breach was without just cause. Counsel proceeds to submit, that, at the very least, this constituted gross negligence.

With respect, I find myself unable to agree.

Firstly, I am not convinced that setting the tariff using an incorrect classification was breach of the duty imposed upon the defendant by statute. Secondly, I am not persuaded that making an error in calculating duty is per se gross negligence....,.

I am also reluctant to hold liable a defendant for pursuing a constitutional right in unsuccessfully noting an appeal to the Supreme Court as to do so might be to stifle, and, in some cases, completely negate such right.

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

On 4 December 2007, the plaintiff issued summons claiming damages in the sum of $5,583,250= (old currency) together with interest thereon at the prescribed rate from the date of summons to the date of payment, and costs of suit. The claim arose from a motor accident which happened at Belgravia Shopping Centre, Harare on 15 ...

The defendant contested the claim on the basis that the plaintiff voluntarily assumed risk by allowing her to drive his vehicle unsupervised - well aware that she was not a licensed driver. The defendant further denied that she drove negligently.

I perceive the issues as being mainly two. The first is whether or not the defendant was liable; the second issue would be whether or not the plaintiff is entitled to the quantum of damages claimed.

The plaintiff testified that on 15 September 2007, at about 22:00 hours, he was driving along Second Street Extension when he observed the defendant and her husband pushing a Nissan Sunny. He stopped and assisted in pushing the vehicle to a nearby service station. As it was late; and for security reasons, he requested the defendant to remain in his vehicle. As he was pushing the vehicle, he realized that it was not safe for the defendant, and the child, to remain in his vehicle where he had parked it. He inquired from the defendant's husband if the defendant was a licensed driver so that she would drive his vehicle to the service station.

The plaintiff's husband advised him that she was a licensed driver. The plaintiff then gave the defendant his car keys and went back to push the defendant's vehicle.

When they got to the service station, he realized that his vehicle was still parked where they had left it. They went back to his vehicle. Upon arrival, the defendant indicated that she could not start the vehicle. He advised her that the vehicle had an automatic gear transmission system. He told her that the vehicle could only be started when in the parking gear. The defendant then opened the rear doors for the plaintiff and her husband to get into the vehicle. She started the vehicle and took off at an alarming speed. She failed to negotiate a right turn. The plaintiff could not assist in controlling the vehicle as he was seated in the back. The defendant then rammed into a pharmacy; after having leaped over the pavement in front of the pharmacy.

The plaintiff testified that the defendant did not tell him that she was an unlicensed driver still undergoing driving lessons. They had not met before. It was late at night, and not safe to be teaching someone to drive. He would therefore not have allowed the defendant to drive if he had known that she was not a licensed driver. He denied forcing the defendant to drive the vehicle. He would have sat in the front passenger seat had he forced her to, instead of the back seat. He would also have expected the defendant to refuse to drive the vehicle if she was unlicensed and not familiar with an automatic vehicle.

The plaintiff closed his case.

The defendant took to the witness stand. She testified as follows -

On 15 September 2007, the plaintiff stopped to help her and her husband after their vehicle had developed a mechanical fault. He offered to assist her husband to push the vehicle to safety. He inquired whether she could drive. She replied that she was still going for driving lessons. The plaintiff then gave her his car keys. When she got into the vehicle, she noticed that the vehicle was different from the ones that she had driven before. She then remained seated in the vehicle until her husband and the plaintiff returned. She told the plaintiff that she could not drive the vehicle. The plaintiff told her to get into the driver's seat, and he got into the back seat together with her husband. He forced her to drive the vehicle despite having told him that she was not qualified to drive. He then gave her instructions on how to operate the vehicle, and she started driving the vehicle. He instructed her to turn. The vehicle gained speed. He then instructed her to apply the brakes. She could not locate the brakes. Instead, she stepped on the accelerator and ended up in the pharmacy.

She testified that sometime after the accident she was advised by her husband that the plaintiff had sent a quotation of repairs to the vehicle, and the plaintiff's banking details where the defendant would deposit the money stated in the quotation. Her husband made payments totalling $5 billion as an out-of–court settlement. She testified that the payment was in satisfaction of the claim by the plaintiff although there was an outstanding balance. The payment was, however, made without her consent.

Turning to the issues for determination..., there are two issues for determination. The first issue is whether or not the defendant was liable for the damages suffered by the plaintiff. In the event that I hold that the defendant was liable, the second issue would be whether or not the plaintiff is entitled to the quantum of damages claimed.

It is not in issue that the defendant was driving the plaintiff's vehicle when the accident occurred. The plaintiff's vehicle was extensively damaged. The defendant sought to avoid liability by raising the defence of volenti non fit injuria. As rightly submitted by counsel for the plaintiff the onus to establish the defence rested on the defendant. The defendant conceded, under re-examination, that she was liable for the damages suffered by the plaintiff. She further conceded that the payment made by her husband to the plaintiff was settlement of the plaintiff's claim.

In view of the concessions, liability is therefore no longer in issue. I therefore do not consider it necessary to dwell on the defendant's defence of volenti non fit injuria.

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

It was further contended in the alternative that the defendant was negligent in that before passing ownership to the plaintiff she had not made proper enquiries as regards the true ownership of the motor vehicle. It was..., the defendant's position that after purchasing the motor vehicle she had herself verified the previous ownership of the ...

It was..., the defendant's position that after purchasing the motor vehicle she had herself verified the previous ownership of the vehicle, and it was cleared by both the Vehicle Theft Squad, Southerton Police, and the Central Vehicle Registry, after which she got the motor vehicle registered in her own name.

The defendant went on to say that when she sold the same motor vehicle to the plaintiff, she, together with the plaintiff, took the motor vehicle to the Zimbabwe Republic Police, Car Theft Section, Southerton Branch, Harare, where it was cleared to enable the plaintiff to have the motor vehicle registration book issued in his name.

The defendant went on to say that having assisted the plaintiff change ownership of the motor vehicle the latter went on to enjoy the use of the same motor vehicle for close to eleven months.

The greatest challenge which the plaintiff had to overcome was to convince the court that his eviction was due to a defect in the title, and the defendant was negligent in the manner she conducted herself.

In the light of the uncontested evidence given in this court, there is no doubt that the defendant was unaware of the defect in the title of the motor vehicle in question (if at all). It was accepted by both parties, and consequently accepted by this court, that before the defendant herself accepted title in the car she took the trouble to go and verify the authenticity of the seller to her. The result of that enquiry, which was conducted through the Car Theft Section, was the motor vehicle registration book in the defendant's name.

After selling the motor vehicle to the plaintiff, again, both the defendant and the plaintiff repeated the same exercise with the Car Theft Section, Southerton, and the result of that verification exercise was..., the car registration book in the plaintiff's name.

The plaintiff enjoyed the use of this motor for close to eleven months.

It is quite clear to me that if the defendant knew of any defect in the title of the motor vehicle she would not have gone that far.

The plaintiff must simply not be believed when he tries to convince the court that there was some clandestine arrangement with the defendant and the police at Southerton Car Theft Section, when the motor vehicle was examined, in order to facilitate change of ownership from the defendant to the plaintiff, for if it were so, the plaintiff could not have been so reckless to accept transfer to his own name. Such an approach would have been a monumental assumption of the risk involved, and the plaintiff would have to be stopped from crying foul now.

HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

The general rule in our law is that, if a supervening physical or legal factor renders the performance of a contract impossible, through no fault of the debtor, the obligations of the parties under the contract are thereby extinguished and cannot be enforced. See Beitbridge-Bulawayo Railways (Pvt) Ltd v Commercial Union Insurance Company of Zimbabwe Ltd SC91-07. However, this general ...

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

Having voluntarily assumed risk over the care of the property, well knowing its value, it cannot, therefore, attribute contributory negligence to anyone. Volenti non fit injuria, that is to say, one cannot be heard to complain where he has consented to the harm being done. Voluntary assumption of risk amounts to liability when ...

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

It is trite that the excluding or limiting term must be brought to the attention of the party against whom its protection is sought or otherwise be within his knowledge – Micor Shipping (Pty) Ltd v Treger Golf and Sports Ltd 1977 (2) SA 709 (W)…,.; Tubb (Pvt) Ltd v Mwamuka 1996 (2) ZLR ...

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

These are people who had obtained a prospecting licence before and had now applied for a certificate of registration. So they knew that it was a requirement of the law to have a certificate of registration before they could start mining activities. That they went on to commence preparatory work in anticipation of the issuance of the ...

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

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

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

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

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

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

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

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

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

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

The plaintiff based his claim on three particulars of negligence, as set out in paragraph 5 of his declaration, namely, that:

(a) Defendant failed to take reasonable steps to fix a fault which had occurred knowing fully the danger associated with such fault, in that the live low lying cable was low-lying for over a month before the electrocution.

(b) Defendant failed to take reasonable measures to disconnect electricity transmission after the fault had occurred so that the low lying cable would not carry electric current which ended up injuring the plaintiff.

(c) Defendant failed to take the necessary action in time and only took action after the plaintiff was injured, such delay was the cause of the plaintiff's injuries.

The defendant entered appearance to defend the plaintiff's claims, and, in its plea, denied liability for the injuries suffered by the plaintiff as a result of the electrocution. The defendant averred that the electrocution was solely caused by the plaintiff who deliberately handled the live electricity conductor which was hanging two metres above the ground, a distance about the plaintiff's height. The defendant further averred that the cause of the conductor hanging two metres above the ground was a natural event, a lightning bolt, for which defendant was not responsible.

The issues for trial were set out in a joint pre-trial memorandum and agreed as follows:-

1. Whether or not the plaintiff was injured due to the negligence or wrongfulness on the part of the defendant.

2. Whether or not the plaintiff is entitled to the damages claimed against the defendant. If so, whether the plaintiff is entitled to the quantum claimed in the declaration or any lessor amount.

3. Whether or not there was contributory negligence on the part of the plaintiff, and, if so, the effect on the quantum of damages, if any.

Plaintiff's case

The plaintiff testified that, on the 14th of December 2015, while he was herding cattle in the Hozheri Village, the raincoat he was wearing got into contact with a live conductor that was lying about 50cm from the ground resulting in a bolt of fire. When the plaintiff saw the fire he was startled and panicked resulting in him getting into contact with the live electric conductor. The plaintiff was electrocuted and became unconscious, and, when he woke up, he was in a hospital bed at Mpilo Central Hospital.

The plaintiff stated that there was no way he could have avoided getting into contact with the conductor since everything happened quickly and in a flash.

The plaintiff sustained burns on his back, on the right leg, and on the head, and behind the right ear. The plaintiff's left hand was amputated and he spent three months in hospital receiving treatment.

In his evidence, the plaintiff contended that the injuries arose as a result of the defendant's negligence in that it failed to take reasonable measures to fix an electrical fault which had occurred in its distribution system, knowing fully well the dangers associated with such a fault. The plaintiff contended that the defendant, as the sole distributor of electricity in the national grid, it should have exercised a high degree of maintenance and care of its assets.

The plaintiff stated that he was claiming the sum of US$60,000 for pain and suffering because he endured a lot of pain when his hand was being amputated and also for the wounds on his back, leg, head and right ear. The plaintiff stated that he suffered a great deal of pain as the electric current surged through his body. The plaintiff further claimed the sum of $160,000 for permanent disfigurement because the electrocution changed his whole life. He stated that his ambition was to become a soldier or policeman but his dream was shuttered by the injuries he sustained. The plaintiff indicated that he was now limited in the things he could do as a result of the amputation of his left hand. The plaintiff claimed a further sum of US$30,000 in respect of future medical expenses. The plaintiff did indicate the burn wounds he sustained to the court, and the court observed that indeed his left arm had been amputated from shoulder level.

It is noted that the plaintiff, in giving oral evidence in court, never adverted to or substantiated the particulars of negligence alleged against the defendant as pleaded in paragraph 5 of his declaration. No explanation was proffered for the departure from the pleaded particulars of negligence.

Under cross-examination by defendant's counsel, the plaintiff alleged two particulars of negligence which were never pleaded, namely:-

(1) Defendant was required to clear the grass and trees on the way – leave along the electricity line where plaintiff was electrocuted.

(2) Defendant was supposed to note that there was a low-lying cable on its electricity network and fix the hazard that had been created.

Under cross examination by the defendant's counsel, the plaintiff was confronted with the defendant's version of the cause of electrocution and the plaintiff persistently denied that the electricity conductor which electrocuted him was hanging two metres above the ground and that he deliberately handled the live conductor thereby precipitating a short-circuit fault to earth, hence the electrocution.

The plaintiff persisted with his denial of the defendant's version even when confronted with photographs depicting the position of the conductor which electrocuted him and the condition of the ground on the way-leave along the electricity line. The plaintiff persisted with his version that the conductor which electrocuted him was only 50cm above the ground and was covered in grass.

It was put to him that it was not possible for the electric conductor to have been covered by grass because this would have caused the circuit to trigger automatically in which event the conductor would not have been live at the time of electrocution.

The plaintiff closed his case without calling any further witness.

The plaintiff struck as a witness who was evasive and who could not accept basic factual scenarios presented by the evidence. An example of this is that the photographs where the electrocution occurred, which position was incidentally pointed out to the defendant by the villagers, showed that the conductor was two metres above the ground. There was no grass or shrubs covering the conductor as shown by the photographs.

Defendant's case

The defendant called its first witness, Mitchel Chiungwe. This witness testified that he was the lead artisan responsible for maintenance, control, and operation of the defendant's electricity networks, which covers Senale sub-station which feeds the Hozheri village area where the plaintiff was electrocuted.

Mr Chiungwe's evidence was that on the afternoon of the 14th of December 2015 he received a telephone call from a late Member of Parliament, Mr Chivamba, who informed him that there had been an accident involving the electrocution of the plaintiff. Mr Chiungwe abandoned the repair work he was engaged in and drove to the sub-station which fed the Hozheri line. Upon arrival at the substation he observed that the Auto-Recloser Circuit Breaker had not tripped, meaning that the particular line was live. He manually tripped the circuit breaker to ensure that the point at which the accident was safe. He then drove to the scene of the electrocution and the exact spot was identified to him by villagers. The plaintiff had already been taken to hospital. At the scene of the accident, Mr Chiungwe made the following observations:-

1. There was an electric conductor that was hanging roughly two metres above ground.

2. He observed an insulator and insulator pin which were supposed to be sitting on the cross-arm of the electricity pole which had been damaged, causing the conductor to fall off the cross arm, leaving it hanging two metres from the ground.

3. The ground at the scene of the accident was wet and the villagers indicated that there had been a heavy storm the previous night.

4. The wooden pole which was carrying the conductors and the cross-arm was damaged from the top and there was no doubt that the damage had been caused by a lightning strike.

5. There was a dark patch on the conductor, being the point of contact between the plaintiff and the conductor, and the ground beneath the point of contact had burnt grass indicating the point where the electricity was discharged into the ground during the electrocution.

The witness explained that the electricity network protection system had three components, namely, the Auto Recloser Circuit Breaker, the current transformers, and the Relay. The system is designed to protect against fault current, current overload, and phase faults. The Auto Recloser Breaker operates by tripping when conditions for a trip are achieved and recloses. The tripping and opening operation is so fast that it takes 0.2 to 0.5 seconds. If the conditions for a trip persist beyond the closing and opening operation, the circuit breaker trips permanently to stop the current from flowing through that particular conductor.

Mr Chiungwe further explained that the plaintiff created the conditions for a trip of the circuit breaker when he had direct contact with the conductor and his body created a direct contact between the conductor and the earth.

The Auto Recloser Circuit breaker protection system is designed in such a way that if the contact is temporary or intermittent, it trips and re-closes on its own, hence, the plaintiff was released and managed to get off the conductor when the circuit breaker opened in the course of that fast operation. The circuit breaker was closed after the plaintiff was released and fell to the ground, hence, the conductor was live even after the plaintiff's electrocution.

Mr Chiungwe disputed the plaintiff's version of how he got electrocuted by pointing out the following factors;

(1) A live conductor cannot be covered by grass and shrubs as such objects create the conditions for a trip and the line would have tripped upon the conductor getting in contact with the grass and shrubs.

(2) The conductor which electrocuted the plaintiff is high voltage conductor carrying 11,000 volts. A raincoat coming into contact with such a conductor would have burnt on the plaintiff as the raincoat material is highly conductive.

(3) The way-leave along the electricity line was cleared of grass and shrubs a few months prior to the electrocution and the photographs of the scene of the accident show that the conductor was hanging two metres above the ground and there were no shrubs or bushes covering the conductor.

Mr Chiungwe testified that the lightning strike which caused the conductor to fall off the cross-arm did not trigger a trip of the circuit breaker because lighting adds more voltage to the current carried in the conductor and the protection system is designed to absorb such over-voltages without causing a trip.

According to the finding made by this witness the factual cause of the electrocution was the plaintiff's conduct in deliberately handling the conductor which was hanging two metres above the ground after the lighting had struck the wooden pole on which the conductor was sitting.

This witness gave his evidence in a comfortable, consistent and logical manner. He was not shaken under cross-examination. His factual findings were not discredited or disproved at all under cross-examination.

The second witness for the defendant was Engineer Martin Kanyepe who is the senior engineer responsible for the area where the incident occurred.

He testified that his role was to carry out an investigation into the circumstances leading to the electrocution. He travelled to Hozheri village, on 15 December 2015, to make observations at the scene and to interview witnesses. He was shown the scene of the incident by villagers and he took some photographs. He also visited the plaintiff at Mpilo Hospital and asked him what had happened.

The plaintiff told Engineer Kanyepe that he had handled an electrical conductor and sustained burns on his hands, armpits, and part of his buttocks.

The witness corroborated Mitchel Chiungwe on how the network protection system operates.

From his investigations, Engineer Kanyepe concluded that there was a deliberate handling of the electrical conductor which resulted in the plaintiff being electrocuted.

The witness gave his evidence well and was not contradicted in any material respects under-cross examination.

The Applicable Law

The test for negligence

The plaintiff maintained, throughout the trial, that the defendant was negligent in that it failed to take notice of the fact that a fault had occurred in its system. The plaintiff averred that the defendant was exclusively responsible for electricity transmission and distribution, and, as such, where a fault occurred causing injury they should be held liable.

The standard test for determining negligence to ground liability for damages in delict was formulated by HOLMES JA in Kruger v Coetzee 1996 (2) SA 428 (A)…, as follows:

“For the purposes of liability, culpa arises if -

(a) A diligens paterfamilias in the position of the defendant –

(i) Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) Would take reasonable steps to guard against such occurrence; and

(b) The defendant failed to take such steps.”

The test has often stated as the question; “Whether but for the negligent act or omission of the defendant the event giving rise to the harm in question would have occurred.”

See Minister of Police v Skosana 1997 (1) SA 31 (A).

In Border Timbers v Zimbabwe Revenue Authority 2009 (1) ZLR 131 (H)…, MAKARAU (JP)…, held as follows:

“While the culpable conduct causing harm is not actionable unless it also causes wrongful, conduct that is not negligently or intentionally caused but that results in harm is equally not actionable unless there was a duty to prevent the occurrence of harm to the plaintiff.”

What is the approach to mutually destructive and irreconcilable versions?

There can be little doubt that the versions led by both parties are mutually destructive and cannot be reconciled. The version of how the electrocution occurred, as narrated by the plaintiff, cannot be reconciled with the defendant's version.

The approach to be taken in such circumstances was discussed in Stellenbosch Farmers' Winery Group Ltd & Anor v Martel et cie and Ors 2003 (1) SA 11 (SCA), the court held that:-

“The technique generally employed by the courts, in resolving factual disputes of this nature, may conveniently be summarised as follows:

To come to a conclusion on the disputed issues, a court must make findings on:

(a) The credibility of the various factual witnesses;

(b) Their reliability; and

(c) The probabilities.

As to (a) the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That, in turn, will depend on a verality of subsidiary factors, not necessarily in order of importance, such as;

(i) The witness's candour and demeanour in the witness box;

(ii) His bias, latent and blatant;

(iii) Internal contradictions in the evidence;

(iv) External contradictions with was pleaded or put on his behalf, or with established fact or with his own extra-curial statements or actions;

(v) The probability or improbability of particular aspects of his version;

(vi) The caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events.

As to (b), a witness's reliability will depend, apart from the factors mentioned under (a)(ii), (iii), (iv) and (v) above, on the opportunities he had to experience or observe the event in question and (ii) the quality, integrity, and independence of his recall thereof.

As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues.

In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.”

It is my view that the plaintiff's version of how the electrocution occurred is inherently implausible and not consistent with all the established facts.

The defendant led evidence from qualified persons who indicated that where a live electricity conductor falls off from the cross-arm on the pole and hangs at 50cm above the ground where it is covered by grass and trees this will trigger a trip of the circuit breaker as they become the direct link between the live conductor and earth, causing short-circuit to earth.

The plaintiff's account of how he got into contact with the live conductor is clearly not sustainable on the facts.

In Matambo v Mutsago 1996 (1) ZLR 101 (S)…, the Supreme Court stated the approach in evaluating the evidence where a witness makes an assertion that is mechanically impossible. McNALLY JA had this to say:

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

The plaintiff in this matter did not adhere to the pleaded cause of action and departed from his declaration in material respects. No explanation was given why the oral evidence given under oath was substantially different to the cause of the electrocution stated in the declaration.

The plaintiff failed to discharge the onus on him to prove his pleaded cause of action. The purpose of pleadings is to set out the basis of the claim. The particulars of negligence, as pleaded in the declaration, were responded to by the defendant in his plea. The issues for trial were set out on the basis of the pleaded cause of action. The matter then proceeded to trial.

A party who makes a claim based on a particular cause of action may not abandon the pleaded cause of action during the course of the trial without seeking, and being granted, a formal amendment.

Applying the Law to the Facts

The plaintiff essentially relied on the case of 1959 Andrew v Appalachian Flier Power Company, 192 VA 150 635.E.ZD 750 where the court held that:

“Under the res ipsa loquitur, proof that injury has resulted from contact with highly charged wire which is under exclusive operation and control of the defendant and is out of its proper place, raises prima facie presumption that defendant was negligent. Electric companies are held to high degree of care in construction and maintenance of dangerous appliances employed by them. Such high degree of care by those using public streets for transmission of electric power includes duty of making reasonable and proper inspection of their wires and appliances.”

The critical issue for determination is whether the plaintiff proved, on a balance of probabilities, that a particular wrongful and negligent act on the part of the defendant was the factual cause of the electrocution suffered.

It is evident that the plaintiff's case suffers a still birth at the point where the plaintiff fails to adduce evidence to prove the pleaded cause of action.

The plaintiff may not place reliance on the doctrine of res ipsa loquitur for the simple reason that his version on how the electrocution occurred is not believable and is not consistent with the established facts. The court's finding is that the plaintiff must have deliberately or carelessly handled the live electrical conductor which was two (2) metres above the ground. In that regard, therefore, liability on the part of the defendant could not be established.

The proper approach in establishing factual causation was set out by CORBETT CJ in International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) as follows:-

“The enquiry as to factual causation is generally conducted by applying the so called “but–for” test, which is designed to determine whether a postylated cause can be identified as a causa sine qua non of the loss in question. In order to apply this test one must made a hypothetical enquiry as to what probability would have happened but for the wrongful conduct of the defendant.”

On the plaintiff's version, it is clear that the plaintiff failed to establish any particular wrongful or negligent act on the part of the defendant. What is clear from the totality of the evidence is that the plaintiff must have suffered the electrocution when he deliberately came into contact with a live electrical conductor.

In cases of delictual liability, a distinction must be drawn between actual and human phenomena. Responsibility and liability is not attached where natural events or natural disasters cause damage or injury.

The lightning bolt that caused the conductor to hang two metres above the ground was an act “of God” for which the defendant cannot be held liable.

The evidence from the defendant's witnesses is that there was no report made of a conductor hanging two metres above the ground before the accident involving the plaintiff. The defendant's Auto-Recloser System was found to have been working. There is therefore no conduct attributed to the defendant's fault which could be said to be the factual cause of the electrocution of the plaintiff.

The plaintiff was nineteen (19) years old at the time of the accident. By his own admission he already knew about the dangers of electricity. He voluntarily assumed risk when he handled or came into contact with the live electrical conductor. In the circumstances, it cannot be said that the defendant breached any duty owed to the plaintiff to prevent the plaintiff from deliberately handling a live wire and causing harm to himself.

Conclusion

I make the finding, that, on the evidence led, and in applying the relevant law to the facts, the plaintiff failed to discharge the onus on him to prove, on a balance of probabilities, the pleaded cause of action.

The plaintiff failed to substantiate his claims and the defendant's version of how the electrocution occurred is more plausible than the plaintiff's version. The plaintiff gave an inherently impossible and implausible account of how he got into contact with the live electric conductor. The plaintiff failed to prove any particular of negligence against the defendant.

The plaintiff's claims must therefore fail with costs.

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.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

Appealed
SC49-13 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs CHINA SHOUGANG INTERNATIONAL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSWAYO JA

Standard Chartered Bank Zimbabwe (“the appellant”) or (“the Bank”) is a commercial bank registered and operating in Zimbabwe.

The respondent is a company duly incorporated in terms of the laws of Zimbabwe and was carrying on business in Redcliff, Zimbabwe. It is a foreign investor whose specific purpose was the refurbishment of the blast furnaces of a Zimbabwean steel manufacturing company popularly known as Ziscosteel.

In October 2007, the respondent held two accounts with the Kwekwe branch of the appellant. As at 9 October 2007, there was, in the two accounts, an aggregate credit balance of US$47,739=86.

In terms of a directive issued by the Reserve Bank of Zimbabwe (sometimes referred to herein as “the RBZ”) sometime in October 2007, the appellant transferred, to the RBZ, the total credit balance of US$47,739=86 from the two accounts.

The directive does not form part of the record, but, it is common cause that it was purportedly issued in terms of section 35(1) of the Exchange Control Regulations 1996, SI109 of 1996 (“the Regulations”).

When the respondent demanded payment to it of the monies deposited in the accounts, the Bank refused to repay. It claimed that the intervention of the Reserve Bank of Zimbabwe (RBZ) had rendered it impossible for it to comply with its contractual obligation to make payment to the respondent.

The respondent applied to the High Court for an order compelling payment.

It alleged, that, the monies were wrongfully and unlawfully debited from its account without its consent and approval. It claimed, that, in terms of the law of banking, the Bank was contractually bound to repay the credit balances on demand.

The Bank contended, in its defence, that, upon receiving the directive by the Reserve Bank of Zimbabwe (RBZ), the funds held in the respondent's accounts ceased to be the property of the Bank and became that of the RBZ. It was contended further, that, the intervention of the Reserve Bank of Zimbabwe (RBZ) constituted an Act of State, and, therefore, a supervening impossibility which discharged the appellant from its obligations to the respondent.

The learned Judge granted the application. It is against his judgment that the Bank now appeals.

The main issue which falls for determination in this appeal is whether the Bank is liable to pay to the respondent the aggregate amount of US$47,739=86 transferred by it to the Reserve Bank of Zimbabwe.

THE LAW

The general rule relating to deposits made in a Bank account by a customer is that the money becomes the property of the Bank which can use such deposit as it pleases so long as it pays to the depositor, on demand, the equivalent of the amount deposited in the account.

In Standard Bank of South Africa v Echo Petroleum CC, Case No.192/11 (2012) ZASCA 18 (22 March 2012)…, it was said:

“The general rule is that, moneys deposited into a bank account fall into the ownership of the bank. The resulting credit belongs to the customer, the bank having a contractual obligation to pay the customer, on demand, and to honour cheques validly drawn on the account to the extent that it stands in credit.”

See also ABC Bank v Mackie Diamonds SC23-13; Foley v Hill (1848) 2 H.L. Cas 28.

The legal relationship between a Bank and its customer, whose account is in credit with it, is that of debtor and creditor.

Although the customer 'deposits' money to the credit of his account with the bank, the transaction is not one of depositum, but of loan: see Burg Trailers SA (Pty) Ltd v ABSA Bank Ltd 2004 (1) SA…,.; Ormerod v Deputy Sheriff, Durban 1965 (4) SA 670 (D)…,.; Absa Bank Ltd v Intensive Air (Pty) Ltd & Ors 2011 (2) SA 275.

If this legal position is followed to its logical conclusion, then, the deposits were the property of the Bank and what the Bank paid to the Reserve Bank of Zimbabwe (RBZ) was its own money.

That the Bank parted with the deposits in the account was of no import to the respondent whose right to be paid the equivalent of the deposits, on demand, remained unaffected by the Bank's dealings therewith.

The transfer to the Reserve Bank of Zimbabwe (RBZ), in terms of its directive, did not, therefore, extinguish the Bank's contractual obligation to make payment to the respondent.

THE DEFENCE

The Bank contends, that, it is discharged from its contractual obligations to the respondent by reason of a supervening impossibility otherwise known as a vis maior or casus fortuitus, namely, the Reserve Bank of Zimbabwe (RBZ) directive.

In support of its stance, it relies on the judgments in Peters, Flamman & Co v Kokstad Municipality 1919 AD 427 and Bob's Shoe Centre v Henneways Freight Services (Pty) Ltd 1995 (2) SA 421 (A).

The brief facts of Peters, Flamman & Co v Kokstad Municipality 1919 AD 427, as summarised in The Law of Contract in South Africa 3ed by RH CHRISTIE…, are that the appellant firm was contracted to light the streets of Kokstad for a period of years. During the currency of the contract, in wartime, the partners were interned as enemy aliens and their business wound up under the relevant war legislation. The Municipality's claim for damages for breach of contract and forfeiture of the firm's plant under a clause of the contract was rejected by the Appellate Division. At pp434-5 of the judgment of the court, SOLOMON ACJ remarked as follows:

“…,. Nor is it necessary to consider generally what are the circumstances in which it can be said that a contract has become impossible of performance. For the authorities are clear, that, if a person is prevented from performing his contract by vis maior or casus fortuitus, under which would be included such an Act of State as we are concerned with in this appeal, he is discharged from liability.”

In Bob's Shoe Centre v Henneways Freight Services (Pty) Ltd 1995 (2) SA 421 (A) the appellants were contracted to clear and deliver a consignment of shoes to the respondents factory in the city. A fire consumed the warehouse where the shoes were warehoused. The shoes were destroyed and it became impossible to complete performance of the contract.

Clearly, the facts of both these cases are distinguishable from those in casu.

The appellant herein has not shown, that, for some reason beyond its control, it cannot, from its resources, repay the debt. It has not proved impossibility.

It goes without saying, that, in order for its defence to succeed, the appellant must do more than merely allege impossibility. The impossibility must be proved, that is, it must be clear from the evidence that performance is impossible, not merely undesirable or uneconomical: see The Law of Contract in South Africa 3ed by R H CHRISTIE…,.

In any event, it would appear, that, where a Ministerial directive is given without statutory authority, obedience thereto will not qualify as a vis major or casus fortuitus.

The appellant has submitted, that, it was obliged to follow the Reserve Bank of Zimbabwe's directive and cites section 40 of the Exchange Control Regulations 1996, S.I.109 of 1996 (the Regulations).

It alleges, that, it did not oppose the directive because of its fear of the Reserve Bank of Zimbabwe (RBZ), which, in terms of section 37 of the Exchange Control Regulations 1996, SI109/1996, has the power to revoke its licence.

As the respondent submitted, the directive was issued without statutory authority. It was ultra vires the provisions of section 35 of the Exchange Control Regulations 1996, S.I.109/1996 (the Regulations) which grants no authority to the Reserve Bank of Zimbabwe (RBZ) to confiscate deposits in the accounts of customers of the Bank.

The correctness of this submission emerges quite clearly from a reading of the section which provides as follows:

“35. Authorised dealers and other persons to comply with directions

(1) Authorised dealers shall comply with such directions as may be given to them by an exchange control authority relating to -

(a) The exercise of any functions conferred on them by or under these regulations;

(b) The terms on which they are to exchange foreign currency for Zimbabwean currency;

(c) The offer of foreign currency in their possession for sale to the Reserve Bank.

(2) Persons concerned with —

(a) The keeping of any register in Zimbabwe; or

(b) The payment of capital moneys, dividends, or interest in Zimbabwe;
shall comply with such directions as may be given to them by an exchange control authority in relation to any function conferred or imposed on them by or under these regulations.”

Not only was the directive in violation of section 35 of the Regulations, but, the Bank had the option, if so minded, of resorting to the provisions of section 37 of the Regulations which provide for adequate opportunity to be given to the dealer concerned to make representations before any punitive measures were taken, as well as to the safeguards provided in section 40.

Both statutory provisions are set out below.

“37. Penalties for failure by authorised dealers to comply with regulations or directions

(1) Subject to this section, if an exchange control authority is satisfied that an authorised dealer has –

(a) Contravened any provision of these regulations; or

(b) Failed to comply with any order or direction with which it is its duty to comply;

The exchange control authority may direct the authorised dealer to cease all dealings in foreign currency, or such dealings as the exchange control authority may specify, for such period not exceeding twelve months as the exchange control authority may specify in the direction.

(2) Before giving a direction in terms of subsection (1), the exchange control authority shall give the authorized dealer concerned an adequate opportunity to make representations in the matter.”

“40. Orders

(1) Subject to subsection (3), the Reserve Bank may make orders for all or any of the following purposes —

(a) To protect or improve the value of Zimbabwean currency;

(b) To bring about and preserve stability in the currency market in Zimbabwe;

(c) To prescribe any matter, which, in terms of these regulations, is required or permitted to be prescribed or which, in the Reserve Bank's opinion, is necessary or convenient to be prescribed in order to give effect to these regulations.

(1) Orders made under subsection (1) may provide for —

(a) The manner in which authorized dealers shall conduct their business for the purposes of these regulations;

(3) Orders made under subs (1) shall not have effect until they have been approved by the Minister and published in the Gazette.”

At the hearing of the appeal, counsel for the appellant conceded, that, the Reserve Bank of Zimbabwe (RBZ) directive was ultra vires of the provisions of section 35(1) of the Exchange Control Regulations 1996, SI109/96 (the Regulations).

Paragraph (c), it will be seen, deals with the offer of foreign currency in their possession for sale to the Reserve Bank of Zimbabwe (RBZ).

He submitted, however, that, the defence of supervening impossibility was available to the Bank even where the directive was unlawful.

I disagree.

In The Law of Contract in South Africa 3ed by R H CHRISTIE…, the following observation is made by the author:

“The limits of vis maior and casus fortuitous have not been authoritatively defined for the purposes of this branch of the law, but, it is clear, from Peters, Flamman, where the internment and winding-up were carried out under statutory authority, that, any similar act of state would qualify.

Legislation subsequent to the making of the contract, making performance illegal either absolutely or without a specified consent which has been refused, will also qualify, as will refusal of a statutory consent, but not obedience to a ministerial directive given without statutory authority.

For the purposes of this branch of the law, there is no necessity to distinguish between vis maior and casus fortuitus, which, between them, include any happening, whether due to natural causes or human agency, that is unforeseeable with reasonable foresight and unavoidable with reasonable care.”…,.

And on page 528:

“Self-created impossibility, that is, impossibility resulting from the act of one of the parties, does not discharge the contract but leaves the party whose act created the impossibility liable for the consequences. This will be so whether the impossibility is complete or partial, and whether or not the act that causes the impossibility is wrongful.”

I respectfully associate myself with those views.

The acts complained of by the Bank do not qualify as vis maior or casus fortuitus and do not absolve the Bank from compliance with its contractual obligation to the respondent.

CONCLUSION

As has been shown above, the credit balance in the respondent's account is a debt that the appellant owes to the respondent.

The appellant has placed no evidence before the court which would establish that it has become impossible for it to make payment of its debt.

Its contention is that, having made payment to the Reserve Bank of Zimbabwe (RBZ) in terms of its directive, it no longer has the respondent's money in its possession and is consequently discharged from its obligation to make payment, upon demand, by the respondent.

The contentions by the appellant run contrary to the established principles of Banking Law, namely, that, the deposits became the Bank's property.

It seems that what the appellant's defence boils down to is that it ought not to be expected to pay in these circumstances.

But, as has been demonstrated above, the dealings by the appellant with the deposits in the accounts, namely, the payments to the Reserve Bank of Zimbabwe, were made at its own risk and did not affect its obligation in law to pay its debt to the respondent on demand.

The appeal is accordingly dismissed with costs.

SC163-21 : TENDAYI WASHAYA and CHIPO WASHAYA vs MAKEBREAK TRADING (PVT) LTD and THE SHERIFF OF THE HIGH COURT (N.O.) and THE REGISTRAR OF DEEDS
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

This is an appeal against the whole judgment of the High Court (“the court a quo”) holding that the first respondent had complied with the provisions of the Contractual Penalties Act [Chapter 8:04] (“the Contractual Penalties Act”) in sending a notice of cancellation of an agreement to the appellants by registered post.

The Court holds, that, the delivery of a registered mail slip at the appellants chosen domicilium citandi constituted due delivery as contemplated by section 8(3)(b) of the Contractual Penalties Act, and as provided for in the parties agreement.

It was not necessary for the document containing the written notice to be delivered to the appellants. Once there was delivery of the registered mail slip then there was delivery of the notice in the same manner as when one is given keys to a house or motor vehicle.

FACTUAL BACKGROUND

On 24 February 2015, the appellants and the first respondent entered into an Agreement of Sale (“the agreement”), in terms of which the first respondent sold to the appellants a vacant piece of land described as Stand Number 321 being a subdivision of Marconi Farm of Kinvara, held under Deed of Transfer number 1136/2002 (“the property”).

The purchase price of the property was pegged at US$30,000.

A deposit of US$15,000 was to be paid in instalments. The first US$10,000 towards the deposit was to be paid upon the signing of the agreement. The balance of the deposit of US$5,000 was to be paid in instalments of US$1,666=67 for a period of three months starting from 30 April 2015. The remaining balance of the purchase price of US$15,000 was to be paid over a period of eighteen months. That balance of the purchase price was to attract interest at the rate of 20% per annum.

Possession of the property was to be given to the purchaser upon payment of 50% of the purchase price.

It was further agreed between the parties, that, if the purchaser failed to perform any of the obligations under the agreement and failed to rectify such breach within thirty days of dispatch by the seller of written notice of such breach by registered post or hand delivery, the seller would have the right to cancel the agreement.

It was further agreed, that, in such circumstances, the seller would regain possession of the property and claim damages by way of a cancellation fee in the sum of US$2,000 subject to compliance with the provisions of the Contractual Penalties Act, or claim specific performance in terms of the agreement with interest at the rate of 20% per annum.

Pursuant to the agreement, the appellants took possession of the property.

In breach of the terms of the agreement, the appellants failed to pay some of the instalments of the purchase price when they became due for payment. Consequently, the first respondent cancelled the agreement.

The cancellation resulted in the appellants instituting summons in the court a quo. They contended, that, contrary to the terms of the Agreement of Sale, there was no thirty day notice given by the first respondent to enable them to rectify the breach.

The allegation was that the first respondent's conduct was in violation of the terms of the agreement.

The appellants sought an order, from the court a quo, declaring the cancellation of the agreement to be invalid. They also asked the court a quo to order the first respondent to accept payment of the arrear instalments together with interest thereon. Lastly, they sought an order compelling the first respondent to sign all documents necessary for the transfer to themselves of the property.

The first respondent filed a plea and a counter-claim in response to the appellants claim.

In the counterclaim, the first respondent averred, that, the appellants breached the agreement when they defaulted on the payment of instalments towards the purchase price for the property when the payment became due. As at 31 October 2017, they had accrued arrears in the sum of US$24,194=04.

The first respondent further contended, that, acting in terms of clause 11 of the agreement, it notified the appellants of the breach through a letter which was served on them via registered mail on 20 November 2017.

The allegation was that the appellants did not rectify the breach, leading to the first respondent cancelling the agreement on 30 October 2018 through a letter which was again served on the appellants via registered mail.

The first respondent prayed for the confirmation of the cancellation of the agreement, eviction of the appellants from the property, the payment of US$2,000 as cancellation fee, payment of holding over damages of US$600 per month, and costs of suit.

In response to the counter claim, the appellants denied all the averments made by the first respondent. They alleged, that, the notice of breach of the agreement given by the first respondent did not comply with the requirements of the contract between the parties.

The appellants accepted that they had breached the agreement by failing to pay the instalments when they became due and payable.

The matter proceeded by way of a Stated Case.

The agreed facts were, that, the appellants had defaulted in the payment of the instalments and had fallen into arrears in the amount of US$24,194=04. It was agreed, that, consequent upon the breach of the agreement between the parties, the first respondent dispatched a letter, by registered post, to the appellants domicilium citandi on 20 November 2017 giving them thirty days notice of intention to cancel the agreement.

The parties also agreed, that, on 15 December 2017, and prior to the expiration of the thirty days notice period, the first respondent dispatched another letter, by registered post, purportedly cancelling the agreement.

The appellants had moved from the domicilium citandi without notifying the first respondent. As a result, the registered mail remained unclaimed at the Post Office until it was returned to the first respondent on 11 April 2018.

The parties were in agreement, that, on 26 October 2018, the first respondent sent another letter to the appellants, advising them to disregard the letter of 15 December 2017 and to consider the letter of 26 October 2018 as the final cancellation letter.

Notwithstanding the letter of 26 October 2018, and in an attempt to remedy the breach of the agreement, the appellants paid into the first respondent's Bank account the sum of US$12,960 on 20 November 2018. They subsequently made payments of US$14,138=20 and US$3,780 on 7 and 9 January 2019 respectively.

The payments were not received because the first respondent had closed the Bank account.

The parties agreed that there was one issue for determination. They couched it as being:

“Whether or not the provisions of the Contractual Penalties Act [Chapter 8:04], in particular section 8(2) as read with section 8(3)(b) that entitles a debtor to a written notice before a credit provider institutes action, requires the debtor to actually receive the notice.”

The court a quo found, that, in sending, by registered post, the notice to the appellants to rectify breach of the agreement within the prescribed period, the first respondent had complied with the legal obligation under the Agreement of Sale. It held that there was compliance with section 8(3)(b) of the Contractual Penalties Act. The appellants claim was dismissed with costs.

Aggrieved by the decision of the court a quo, the appellants noted the present appeal.

The issue for determination is whether the holding by the court a quo, that the delivery of the registered mail slip at the domicilium citandi was service on the appellants of the notice of breach of the agreement of sale in terms of section 8(3)(b) of the Contractual Penalties Act was correct.

The appellants argued, that, what was delivered at the domicilium citandi was not the package containing the written notice itself.

As regards the legal consequences of the delivery, counsel referred the Court to section 40(1) of the Interpretation Act [Chapter 1:01] (“the Interpretation Act”).

Counsel for the appellants argued, that, section 40(1) of the Interpretation Act regulates the interpretation of section 8(3)(b) of the Contractual Penalties Act, which deals with the delivery of registered mail.

It was further submitted, that, section 40(1) of the Interpretation Act envisages a situation where the document with the written notice is delivered rather than the registered mail slip.

He further asserted, that, the provisions of section 8(3)(b) of the Contractual Penalties Act do not depart, in principle, from those of section 40(1) of the Interpretation Act.

He also submitted, that, section 8(3)(b) of the Contractual Penalties Act must be read together with section 40(1) of the Interpretation Act.

The argument was that there was no compliance with section 8(3)(b) of the Contractual Penalties Act.

Counsel for the first respondent argued, that, it was common cause that the registered mail slip was delivered at the appellants domicilium citandi.

He argued, that, the obligations under section 8(3)(b) of the Contractual Penalties Act were discharged by the first respondent.

Counsel further asserted, that. the first respondent did not have the additional obligation to ensure that the appellants collected the registered mail from the Post Office.

Counsel for the first respondent further stated, that, contrary to the terms of the agreement, the appellants had vacated their chosen domicilium citandi without informing the first respondent. He argued, that, while the appellants claimed not to have seen the registered mail slip, they had admitted receipt of a process sent in the same way subsequent to the delivery of the registered mail slip.

THE LAW AND THE FACTS

The question is whether the court a quo was correct in holding that the delivery of the registered mail slip at the appellants domicilium citandi constituted service of the written notice of breach of the agreement between the parties in terms of section 8(3)(b) of the Contractual Penalties Act [Chapter 8:04].

The court a quo said at pp9 and 10 of the judgment:

“The first defendant served the notice in terms of the parties agreement. Paragraph 15 of that agreement gave either party's chosen domicilium citandi and 268/64 Chiltern Road, Waterfalls was the plaintiffs chosen domicilium.

The parties had also indicated in the agreement that any variations or changes to the contract should be in writing and signed by both parties. It is in that same contract that the parties agreed on their respective domicilium for the purpose of receiving any correspondence. There was no variation or change to this.

…,.

A chosen domicilium citandi denotes where a party to a contract desires to receive whatever communication that is in relation to issues to do with such contract.

It follows, therefore, that one's residential address need not be one's chosen domicilium.

A party may choose such domicilium based on where they regard as the most convenient place to receive legal notices, and, should that change, it is to be expected that such party will duly notify those likely to be sending such notice, otherwise the whole concept of choosing a domicilium citandi loses meaning.

It is in this context that one must interpret the provisions of section 8(3)(b) of the Act.

I am therefore persuaded by Mr Nyahuma's argument, that, when the notice dated 17 November 2017 was sent by registered post to the purchaser's chosen domicilium citandi, the first defendant was complying with the exigencies of the provisions of section 8(3)(b).”

Choosing a domicilium citandi has specific legal consequences, such as -

(i) The party who elected the domicilium citandi should be ready to receive any legal notice that is delivered to that address;

(ii) If a change in address occurs, a party should notify the other contracting party, preferably in writing, of such a change in address; and

(iii) Delivery of a legal notice or document to the domicilium citandi chosen by a party to a contract will be considered sufficient for the purposes of legal action and such party would be deemed to have received the legal notice or document.

Section 8 of the Contractual Penalties Act [Chapter 8:04] provides as follows:

“8 Restriction of sellers rights

(1) No seller under an instalment sale of land may, on account of any breach of contract by the purchaser —

(a) Enforce a penalty stipulation or a provision for the accelerated payment of the purchase price; or

(b) Terminate the contract; or

(c) Institute any proceedings for damages;
unless he has given notice in terms of subsection (2) and the period of the notice has expired without the breach being remedied, rectified, or discontinued, as the case may be.

(2) Notice for the purposes of subsection (1) shall —

(a) Be given in writing to the purchaser; and

(b) Advise the purchaser of the breach concerned; and

(c) Call upon the purchaser to remedy, rectify, or desist from continuing, as the case may be, the breach concerned within a reasonable period specified in the notice, which period shall not be less than —

(i) The period fixed for the purpose in the instalment sale of the land concerned; or

(ii) Thirty days;
whichever is the longer period.

(3) Without derogation from section 40 of the Interpretation Act [Chapter 1:01], a notice shall be regarded as having been duly given to the purchaser for the purposes of subsection (1) —

(a) If it has been delivered to the purchaser personally or to an agent chosen by the purchaser for the purpose of receiving such notices; or

(b) If it has been posted, by registered post, to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned, or, in the absence thereof, to the purchaser's usual or last known place of residence or business.”

Section 40(1) of the Interpretation Act [Chapter 1:01] provides as follows:

“40 Service of Documents

(1) Where an enactment authorises or requires a document to be served by post, and where the word 'serve' or any of the words 'give' 'deliver' or 'send' or any other word is used, the service of the document may be effected by prepaying, registering and posting an envelope addressed to the person on whom the document is to be served at his usual or last-known place of abode or business, and containing such document, and, unless the contrary is proved, the document shall be deemed to have been served at the time at which such envelope would have been delivered in the ordinary course of post.”…,.

Parties to a contract are allowed the discretion to choose different forms of delivery of documents or legal notices that relate to the contractual relationship.

The parties elected to use the registered mail system as a mode of delivery.

Because they chose this mode of delivery of documents relating to the contractual relationship, it meant that they agreed to be bound by it.

The law of service of documents by registered post prescribes a procedure for ensuring effective service.

The procedure entails that the registered article, such as an envelope containing the document concerned and bearing the name of the addressee and place where the mail is to be delivered, be deposited by the originator or sender at a Post Office. The registered article must be accepted and its receipt, as a registered item, acknowledged.

Using the internal system of ensuring the security of registered mail, the Post Office concerned conveys the registered article to the branch nearest to the address on the registered item. The branch of the Post Office in possession of the registered item issues out a registered mail slip directed at the address on the registered article, notifying the person whose name appears as the addressee of the availability of the registered item at the Post Office for collection.

The registered item becomes capable of retrieval by the addressee from the Post Office.

Delivery of the registered mail slip at the address appearing on the registered article constitutes effective service of the registered mail. The collection of the registered item from the Post Office is the responsibility of the addressee.

The South African case of Kubaya v Standard Bank of South Africa Ltd [2014] ZACC 1 sets out, at paragraph 48, a standard practice of the Post Office on the conveyance and delivery of registered mail similar to that prevailing in Zimbabwe. The court said:

“It is so, that, section 96(1) requires that notices be delivered 'at the address' provided by the recipient. However, this requirement must be understood with due regard to the practical aspects of dispatching a notice by way of registered mail.

When a credit provider dispatches a notice in that manner, the notice is sent to a particular branch of the Post Office. That branch then sends a notification to the consumer, indicating that a registered item is available for collection. It is never the case that an item dispatched by registered mail will physically be delivered to an individual – such delivery only occurs if the item is sent by ordinary mail, which does not suffice for purposes of sections 129 and 130 of the Act.

If a consumer elects not to respond to the notification from the Post Office, despite the fact that she is able to do so, it does not lie in her mouth to claim that the credit provider has failed to discharge its statutory obligation to effect delivery.”

Where a party to a contract has chosen an address as a domicilium citandi where service of documents or correspondence on matters relating to the contract should be effected and has selected the registered mail as the preferred mode of service of documents or correspondence, compliance by the other party with the procedure prescribed under the law of service by registered post would constitute effective service of any such document or correspondence upon delivery of the registered mail slip at the chosen domicilium citandi.

The procedure prescribed by the law of service of documents or correspondence by registered post does not require delivery of the registered item itself at the chosen domicilium citandi.

In Munien v BMW Financial Services (SA) (Pty) Ltd and Another 2010 (1) SA 549 WALLIS J stated the following...,:

“It follows, that, in my judgment, provided the credit provider delivered the notice in the manner chosen by the consumer in the agreement, and such manner was one specified in section 65(2)(a), it is irrelevant whether the notice in fact came to the attention of the consumer.

As the consumer has the right to choose the manner in which notice is to be given, it is for the consumer to ensure that the method chosen will be one that is reasonably certain to bring any notice to his or her attention.

In the present case, the applicant was presumably aware of the deficiency in the postal services at the address chosen in the agreement. He was certainly aware that he had moved. In terms of clause 15.1 of the contract, he was perfectly entitled to give notice of that fact to the first respondent and to alter his domicilium. He did not do so.

His right to alter his address was reinforced by section 96 of the NCA.

In addition, he was obliged, under section 97 of the NCA, to inform the first respondent that the location of the motor vehicle had changed, but, it does not appear that he did so.

The fact that he did not receive either the notices or the summons appears to follow very largely from his own actions rather than those of the first respondent.”

It is common cause, that, the parties had agreed, under clause 15 of the agreement, that the domicilium citandi would be as stated in the agreement. It is also common cause, that, under clause 14 of the agreement, the parties had agreed that any variation or change to the contract would be in writing and agreed on by both parties.

The written notice, drawing the attention of the appellants, as purchasers, to breach of the contract and calling upon them to rectify the breach within thirty days of service of the notice on them failing which cancellation of the contract would follow, was sent by registered post to the branch of the Post Office nearest to the address the appellants had chosen as the domicilium citandi.

The Post Office issued out a registered mail slip to the domicilium citandi, notifying the appellants of the availability of the registered item for collection. The registered mail slip was delivered at the domicilium citandi.

The act of delivery of the registered mail slip at the domicilium citandi completed the process of effective service of the notice by registered post contemplated under section 8(3)(b) of the Contractual Penalties Act.

Section 8(3)(b) of the Contractual Penalties Act does not require actual receipt of the registered mail itself by the addressee. It does not require the seller, under an instalment sale of land, to bring the contents of the notice of breach to the subjective attention of the purchaser.

Section 8(3)(b) of the Contractual Penalties Act is to the effect, that, the notice shall be regarded as having been duly given to the purchaser if it has been posted, by registered post, to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned.

The seller discharged its obligation to the appellants, as purchasers, in terms of the contract, as read with section 8(3)(b) of the Contractual Penalties Act, regarding the mode of service of the notice of breach of the contract.

The fact that the appellants no longer resided at the chosen domicilium citandi was of no consequence to the determination of the question whether delivery of the registered mail slip at the domicilium citandi constituted effective service of the notice of breach of the contract for purposes of section 8(3)(b) of the Contractual Penalties Act.

The risk of non-receipt of the registered item lay with the appellants once the registered mail slip was delivered at the domicilium citandi. The obligation to notify the seller, in writing, that they were no longer residing at the chosen domicilium citandi was theirs.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

ISSUES FOR DETERMINATION

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

SHOULD MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE HIGH COURT RULES

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills....,.

AD MERITS

The Makandiwas filed this application in terms of Rule 75(1) of the High Court Rules 1971 for the summary dismissal of frivolous and vexatious action proceedings instituted by the Mashangwas in an action pending before this court under case number HC7214/17.

The respondents made six claims.

Their cause of action in claims 1-4 is said to fall into the delict of fraud. The fifth claim is said to relate to the delict of injurious falsehoods. The sixth claim has been held to fall under the delict of injuria.

A common thread runs through these claims.

They plead that they were members of the third applicant (United Family International Church), a Christian Church founded by the first and second applicants (Emmanuel Makandiwa and Ruth Makandiwa). They further allege that they either received prophesies or representations in church or that certain injurious publications were made of and concerning them or their business. Hence, they claimed various sums all aggregating to a staggering six and a half million United States Dollars.

The applicants pleaded to each of the six claims. They denied the allegations.

Their pleas were filed in contemplation of the present application for dismissal.

The applicants placed before the court a detailed verifying affidavit that traversed and attached incontrovertible evidence which they said exposed the falsity of the facts pleaded by the plaintiffs in their declaration.

The applicants, thereafter, filed the present application for the dismissal of the suit as frivolous and vexatious.

The application is strongly opposed by the respondents.

THE LAW

Rule 75 of the High Court Rules allows a defendant, who has pleaded, to apply for the summary dismissal of the action on the grounds that it is vexatious.

The defendants must, on notice of motion, positively swear to the facts and verify their belief that the action is vexatious and deserving of summary dismissal.

The purpose of this procedure is the same as that of the procedure for summary judgment or provisional sentence.

The court, if satisfied, has the inherent jurisdiction to disallow and dismiss proceedings that are frivolous or vexatious: see Ushewokunze Housing Co-oporative Society Limited v Crest Breeders International (Private) Limited HH529-16; Rogers v Rogers & Another 2008 (1) ZLR 330…,.; and S v Coopers & Others 1977 (3) SA 475…,.

The test to be applied can be explained in no better words than those of MAKARAU JP…, in Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor HH64-10 as follows:

“The test to be applied in summary judgment applications is clear and settled. The onus resting on a defendant resisting summary judgment has been described as amongst the lightest that the rules of procedure cast on the litigants. He does not have to prove his defence. He must merely allege facts, which, if he can succeed in establishing them at the trial, would entitle him to succeed in his defence.

The defence so set up must, however, be plausible and bona fide.

Obviously implied in this test, but oft overlooked by legal practitioners, is that the defendant must raise a defence. The facts alleged must lead to and establish a defence that meets the claim squarely. If the facts that he alleges, fascinating as they may be and which he may very well be able to prove at the trial of the matter, do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgement must be granted.

To defend a claim arising out of a contract of sale, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him. If other defences are raised, they must be raised explicitly. It is not the function of the court to put words into the defendant's mouth and thereby establish a possible defence on his behalf when the defendant fails to do so in his opposing affidavit.”

In the present case, the respondents ultimately denied any liability to the plaintiffs.

This application, therefore, turns on the law of summary dismissal of cases on the basis that they are frivolous and vexatious.

Order 11 Rule 75(1) of the High Court Rules, which provides for this procedure, states that the defendant may make an application for the summary dismissal of the case, after filing of his plea, on the grounds that it is frivolous and vexatious.

My sole duty is to determine whether or not the claims are frivolous and vexatious....,.

CLAIM FOUR

Claim Four, with the greatest of respect, does not make sense; its vague and embarrassing.

The gravamen of the claim is that the respondents were paraded on stage, in church, and shown to the other congregates as the chosen people by God to have succeeded in their business. As a result, they then marketed the first applicant's prophecies (Emmanuel Makandiwa) for the advancement of the applicants interests and prophesies, when, in truth and fact, this was sheer misrepresentation and they lost USD2,000,000.

What the respondents are saying is that when they were paraded in church as the chosen people by God, in actual fact, they were not chosen people by God. That, when they were said to be successful in their own business (remember they were in fact business people) they were really not successful people. That, because of the praise made by the applicants, they went on their own way to market the applicants prophesies using their own funds without being ordered to do so by the applicants. They did so because they genuinely believed that they were the chosen people by God. They, in my view, decided to show off and lost USD2,000,000.

At law, they did not plead any cognizable or known cause of action.

This is bad in law, and is frivolous and vexatious to then claim the sum of USD2,000,000 from the applicants. If at all, this may fall under volenti non fit injuria (he who voluntarily exercises his will suffers no injury).

The claim is therefore frivolous and vexatious and must be summarily dismissed.

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Law Portal
Zimbabwe

Liability, Negligence or Dolus re: Voluntary Assumption of Risk or Volenti Non Fit Injuria

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

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

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

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

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

Appealed
SC49-13 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs CHINA SHOUGANG INTERNATIONAL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSWAYO JA

SC163-21 : TENDAYI WASHAYA and CHIPO WASHAYA vs MAKEBREAK TRADING (PVT) LTD and THE SHERIFF OF THE HIGH COURT (N.O.) and THE REGISTRAR OF DEEDS
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

Categories

Law Portal Zimbabwe

Liability, Negligence or Dolus re: Voluntary Assumption of Risk or Volenti Non Fit Injuria

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: MAKARAU JP

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

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO Ruled By: BERE J

HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES Ruled By: PATEL J

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES Ruled By: BHUNU J

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: NDOU J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.) Ruled By: MUREMBA J

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

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

Appealed SC49-13 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs CHINA SHOUGANG INTERNATIONAL Ruled By: ZIYAMBI JA, GARWE JA and HLATSWAYO JA

SC163-21 : TENDAYI WASHAYA and CHIPO WASHAYA vs MAKEBREAK TRADING (PVT) LTD and THE SHERIFF OF THE HIGH COURT (N.O.) and THE REGISTRAR OF DEEDS Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

Categories

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Law Portal
Zimbabwe

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

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

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

HH59-15 : REUBEN MARUMAHOKO and EDWARD CHIMEDZA and NEVER CHIROWAPASI vs PROVINCIAL MINING DIRECTOR, MASHONALAND WEST (N.O) and OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE (N.O.)
Ruled By: MUREMBA J

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

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

Appealed
SC49-13 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs CHINA SHOUGANG INTERNATIONAL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSWAYO JA

SC163-21 : TENDAYI WASHAYA and CHIPO WASHAYA vs MAKEBREAK TRADING (PVT) LTD and THE SHERIFF OF THE HIGH COURT (N.O.) and THE REGISTRAR OF DEEDS
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J