Damages re: Assessment and Evidence of Damages iro Proof of Claim, Quantification and Restitutio in Integrum ito Approach

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE
Ruled By: MATHONSI J

The plaintiff, a duly incorporated engineering company which is involved in, inter alia, the manufacture of fuel tanks, instituted summons action against the defendant, a bus company, for damages arising out of a motor vehicle accident which occurred on 8 November 2009 at the intersection of Mharapara and Seke Roads in Chitungwiza.

The accident involved a Scania Horse registration number AAZ 4708 which was pulling a fuel tanker, registration number AAS 9480, both belonging to Modcraft Transport (Pvt) Ltd, another registered company which is a sister company of the plaintiff and was being driven by Vengai Mapfumo, and an omnibus, registration number AAS 4056, belonging to the defendant which was being driven by the defendant's driver, one Damascus Mutare.

I must state, that, initially, the plaintiff sued both the bus company and its driver Damascus Mutare, but, subsequently, withdrew the claim against the driver without giving any reason.

It pursued the action only against the bus company.

The plaintiff's declaration reads as follows;

“1. Plaintiff is MODCRAFT ENGINERING (PRIVATE) LIMITED, a company registered with limited liability in terms of the laws of Zimbabwe. Its address for service is that of his (sic) legal practitioners detailed below.

2. The first defendant is TENDA BUSES (PRIVATE) LIMITED. Its address for service is Number 119 Mutare Road, Msasa, Harare.

3. The second is DAMASCUS MUTARE. His address for service is that of the first defendant.

4. On 8 November 2009, along Mharapara Road and Seke Road, Chitungwiza around 0545 hours, the plaintiff's vehicle horse, AAZ 4708, and trailer AAS 9480 was involved in an accident with the second defendant who was driving, during the course and scope of his duties with the first defendant, its bus number AAZ 4056.

5. The first defendant is vicariously liable for the actions of the second defendant pursuant to the above.

6. The accident was caused by the sole negligence of the defendant in one or all of the following respects:

6.1. He was driving at an excessive speed under the circumstances.

6.2. He failed to give way to traffic which had the right of way and caused accident.

6.3. He failed to avoid an accident which was imminent.

7. As a result of the accident, the plaintiff's vehicle was damaged on its 3x12R22.5 tubeless tyres; 2 x12R22.5 tubeless rims; left hand side mudguards; front hanger; outlet pipe tank guard; left side tank.

8. The plaintiff has not repaired the vehicle and it has sourced quotations for the repairs and supply of new tyres, the lowest being US$13,800. The residue being the pre and after accident value difference is more than the costs of repairs.

9. As a result of the accident, the plaintiff suffered repair damages and supply of new tyres in the sum of USD13,800 which amount, despite damage (sic), defendants refuses (sic) fail and/or neglect to pay.”

The plaintiff then prayed for judgment accordingly.

The defendant entered appearance to defend and filed a plea in which it denied that there was a road accident as alleged by the plaintiff.

It averred, further, that, its driver was not acting within the course and scope of his employment but was on a frolic of his own when the collision occurred.

It also made more averments, including that the plaintiff's driver was not properly licenced to drive the vehicle; the vehicle did not have a certificate of fitness; and that the plaintiff's vehicle was not mechanically sound.

The matter was referred to trial on the following issues;

1. Whether the defendant was aware of the road accident.

2. Who caused the accident?

3. Whether the defendant's driver was acting within the course and scope of his employment by the defendant.

4. Whether the plaintiff's motor vehicle was properly licenced, insured, and with the relevant certificate of fitness.

5. What damages, if any, were caused to the plaintiff's truck and trailer and the quantum of those damages.

In order to prove its case, the plaintiff led evidence from two (2) witnesses, namely, Vengai Mapfumo and Freddy Hickey.

Vengai Mapfumo is the holder of a class 2 driver's licence which he obtained in 1993. He produced his driver's licence which shows that he was re-tested in accordance with the law in 2008, which retest was due to expire in 2012, and was therefore valid at the time the accident occurred in 2009.

Vengai Mapfumo testified, that, on the fateful day, he was driving a tanker, laden with petrol, just before 6pm. As he was turning at the intersection of Mharapara and Seke roads, enjoying a right of way against the Tenda Bus which was facing a stop sign, he glanced at his rear view mirror and realised that the bus had not stopped and was about to collide with his trailer which was following behind the horse.

He hooted to alert the driver of the bus, but, it was too late, as it went on to collide with his tanker trailer causing the damage set out in the plaintiff's declaration.

Vengai Mapfumo stated, that, he confronted the driver of the bus who quickly apologised to him saying that he was tired as his bus had been hired earlier on to ferry passengers and he had driven the whole day on that assignment.

After that, he had been re-assigned to ferry other passengers.

He made reference to the police accident book page where his statement had been recorded at the scene of the accident and he signed it.

He denied that his vehicle had any mechanical fault prior to the accident.

Freddy Hickey is the Managing Director of the plaintiff's company, who is hands on and runs the workshop and supervises the activities of the company.

He stated, that, the Scania horse and the trailer are owned by a sister company of the plaintiff, namely, Modcraft Transport (Pvt) Ltd which is also registered.

He made reference to the two (2) registration books of the vehicles showing that, indeed, the vehicles are registered in the name of Modcraft Transport (Pvt) Ltd of Corner Harare and Willow Roads New Ardbennie, Harare.

They are not owned by the plaintiff, neither is the fuel which was being ferried at the time of the accident.

Freddy Hickey stated, that, the plaintiff and Modcraft Transport (Pvt) Ltd are separate entities although the directors are the same. They operate from different premises.

He stated, that, the plaintiff repaired the damaged tanker after the defendant had promised to do so, but failed, and business was being lost when the tanker remained off the road.

He told of how the plaintiff had obtained three (3) quotations from panel beaters of repute for the repairs to the tanker:

Noaluc Panel Beaters & Spray Painters had quoted $15,594 for the repairs; Floyd Enterprises (Pvt) Ltd quoted US$17,814; while Adec Panel Beaters (Pvt) Ltd quoted $15,514.

The plaintiff, being an engineering concern which does the same job, weighed in with a quotation of $13,800 which was far less than what was quoted by the other repairers.

For that reason, the plaintiff undertook the job and sought to recover from the defendant, which was liable - its driver having caused the accident.

It is for this reason that the quotation of 9 November 2009, from the plaintiff, was addressed to the defendant.

Freddy Hickey produced the insurance cover note and certificates of fitness in respect of the horse and trailer to put to bed the claim, by the defendant, that, they were not insured and unroadworthy.

At the close of the plaintiff's case, counsel for the defendant made an application for absolution from the instance on essentially three (3) grounds:

(i) Firstly, he submitted, that, the plaintiff, being a separate entity from Modcraft Transport (Pvt) Ltd, the owner of the motor vehicle which was damaged in the accident, does not have a right of action against the defendant. It is the wrong party to sue.

(ii) Secondly, counsel for the defendant argued, that, the figure of $13,800 being claimed was a “thumb suck” which has not been substantiated as shown by the figure of $12,000 before VAT which has not been broken down to show what it is that the plaintiff did.

(iii) Thirdly, counsel for the defendant submitted, that, as the plaintiff's claim against the defendant is premised on vicarious liability, the decision to withdraw the claim against Damascus Mutare, the defendant's driver, was fatal to the plaintiff's case. It could not proceeded against the defendant vicariously where the employee has not been cited.

Counsel for the plaintiff opposed the application.

He submitted, that, the plaintiff and Modcraft Transport (Pvt) Ltd are intertwined; they have the same directors, and, as such, no difference exists between them.

While conceding that it was bad corporate governance to run the entities inter-changeably, given that they are both registered, he took the view, that, the plaintiff's case remains as the transport company is run like a division of the plaintiff.

On the issue of the driver, counsel for the plaintiff submitted, that, the defendant, having admitted that Damascus Mutare was the driver, the onus shifted to it to prove that he was acting outside the course and scope of his employment as such.

I am of the view that the last two (2) grounds for seeking absolution relied upon by counsel for the defendant are completely devoid of merit and should not detain us at all.

The plaintiff has led evidence and produced quotations, which have not been challenged at all, which show that three (3) other reputable panel beaters would have undertaken the repairs at a cost far more than what is claimed by the plaintiff.

For the defendant to then say that the amount of $13,800, which is significantly lower, should be proved to the last ingredient is to clutch at straws.

In my view, the defendant is lucky that the plaintiff repaired the tanker itself at less the cost and is not claiming $15,514 which was the lowest quoted figure.

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:

“1. An order declaring that:

(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing therefrom, including but not limited to the removal of directors and appointment of new directors; and

(ii) The sale and transfer of Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare to 5th defendant represented by 4th defendant, are null and void;

(b) The minor children, Panashe Ralph Rushesha and Tivonge Sacha Rushesha, remain the sole shareholders in 2nd plaintiff; and

(c) The directors of 2nd plaintiff, as at 12 February 2009, remain directors unless lawfully removed or through resignation (sic).

2. An order that:

2.1 4th defendant, or, failing it, the Deputy Sheriff, takes all necessary steps to transfer Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare, back into the name of the 2nd plaintiff;

2.2 4th defendant and all those claiming occupation through it vacate 3 Justice McNally Close, Mount Pleasant, Harare within fourteen (14) days from the date of judgment; and

2.3 2nd to 5th defendants, jointly and severally, the one paying the others to be absolved: pay for an assessment and report, within fourteen (14) days of such report, by an independent property expert appointed by the High Court, of 3 Justice McNally Close, Mount Pleasant, Harare of any structural changes or damage, other than fair wear and tear, caused to 3 Justice McNally Close, Mount Pleasant, Harare since 12th February 2009 and the costs of repairs or reconstruction; and

(ii) Pay 2nd plaintiff the amount recommended within thirty days of such assessment.

3. An order barring 6th defendant from transferring the property referred to in 6 (sic) above to any third party until transfer to 2nd plaintiff is concluded.

4. In any event, costs of suit on an attorney and client scale to be paid by 1st to 5th defendants, the one paying the others to be absolved.”...,.

Turning to the merits of the claim, the background to the dispute may be summarised as follows:

The first plaintiff is a medical practitioner of Zimbabwean origin. He is presently resident in the United Kingdom together with his wife and children. He is married to the second witness, Aquilina Rudo Rushesha. They had two sons together before they moved to the United Kingdom, namely, Panashe Ralph Rushesha (hereinafter referred to as “Panashe”) and Tivonge Sacha Rushesha (hereinafter referred to as “Tivonge”).

The first defendant, Alexious Mashingaidze Dera, is his brother-in-law, being a brother to his wife.

When the trial commenced, Panashe Ralph Rushesha had attained majority age, and was, by consent, substituted as the third plaintiff.

The first plaintiff's evidence was that before he went to the United Kingdom he acquired an immovable property known as Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, also known as 3 Justice McNally Close, Mount Pleasant, Harare (hereinafter referred to as “the property”).

He asked the first defendant, who is an accountant by profession, to help him form a company in which the shareholders would be the two children mentioned above.

The second plaintiff is the company which was then established for the benefit of the children.

The reason for incorporating the company, according to the first plaintiff, was to have the immovable property registered in the name of the company.

The directors of the company were to be Acquilina Rudo Rushesha and the first defendant.

The property was duly registered in the name of the second plaintiff and was its only asset.

He stated that the name of the second plaintiff derives from the middle names of his two children. “Ra” is from the name 'Ralph; “Sa” is from the name 'Sacha'; while the “R” comes from their surname, Rushesha.

At the time that the property was acquired Panashe was ten years old while Tivonge was about a year old.

The witness paid the purchase price for the property using his own resources.

When the first plaintiff and his family moved to the United Kingdom, in 2003, they leased the property to the South African Embassy. The first defendant was their contact person on some matters relating to the property, but, the rentals were paid directly into his account.

Thus, the first defendant did not receive any rentals in respect of the property; neither did he spend any money on the property.

In or about June 2010, the first plaintiff and his family discovered that the first defendant had sold shares in the second plaintiff to the second defendant, represented by the third defendant. That discovery was only made when the first plaintiff's wife came to Zimbabwe from the United Kingdom.

They discovered that the shares had been sold for a sum of US$36,350.

Subsequent to the sale of the shares in the second plaintiff, the immovable property was then sold to the fourth defendant, represented by the fifth defendant.

The first plaintiff spoke to the fifth defendant by telephone. The fifth defendant advised him that he had purchased the property from the first defendant.

In that conversation, the fifth defendant admitted that he had known that the property belonged to the first plaintiff's wife.

The first plaintiff stated, that, different amounts were given as to the price at which the immovable property had been sold. Initially, a sum of US$90,000 was mentioned. Later on, a figure of US$125,000 was stated as having been paid for the immovable property.

The first plaintiff denied that he authorised the sale of the shares in the second plaintiff or the sale of the immovable property. He, in fact, still holds the original Deed of Transfer for the property.

The first plaintiff described the improvements on the property.

There is a house with three bedrooms. All three bedrooms have bathrooms and toilets; it has three lounges; a kitchen; and a garage on top of which is a tiled entertainment area. There are two rooms next to the garage which the witness stated that he intended to use as offices. The house is fully alarmed. There is a borehole on the property. The other amenities at the property include a gazebo; a swimming pool; a 75 metre driveway with lights; and car shades which can accommodate three motor vehicles.

The second witness for the plaintiff was Aquilina Rudo Rushesha, wife of the first plaintiff.

She is the mother of the two children, Panashe and Tivonge. She was one of the directors of the second plaintiff company at the time that it was incorporated. She never resigned her directorship. She came to Zimbabwe from the United Kingdom in June 2010. That was when she discovered that the immovable property had been alienated by her brother, the first defendant.

She approached the police to help her access the property. She also approached Gerald Mlotshwa, a legal practitioner. A meeting was held which culminated in an affidavit being prepared and sworn to by the first defendant.

The plaintiffs also called Fortune Tapiwa Chasi who is a relative of the first plaintiff's family.

He testified that he knew both the third and fifth defendants at a personal level. The witness was notified of the sale of the property to the Boka company by the first plaintiff. He spoke to the fifth respondent about the matter. From his conversation with the fifth defendant, the latter knew that the first defendant had borrowed money from the second plaintiff and used the immovable property as security for the loan.

The fifth defendant also stated to him, that, he was aware that the property did not belong to the first defendant but to the first plaintiff.

He also communicated to the third defendant, by telephone and e-mail, about the transactions relating to the immovable property. The third defendant stated to him, that, matters related to that were to be directed to his legal practitioners, and that his affairs should be separated from those of the second defendant.

The last witness called to testify for the plaintiffs was the first defendant, Alexious Mashingaidze Dera.

He was, at all material times, a director of the second plaintiff. As stated above, he is a brother to Aquilina Rudo Rushesha and a brother-in-law to the first plaintiff. Although he was cited as the first defendant he did not enter appearance to defend the matter. He only came as a witness at the instance of the plaintiffs after being subpoenaed to attend.

His testimony was that, in February 2009, he obtained a loan in the sum of US$36,350 from the third defendant in order to finance his business of purchasing sugar from Triangle for resale.

As security for the loan, the witness then entered into an agreement for the sale of the shares in the first plaintiff to the second respondent, a company in which the third defendant has an interest.

The agreement of sale was reduced to writing.

His name is recorded as the seller and beneficial owner of “the 2 issued shares in the company” the second plaintiff.

The memorandum acknowledges that the second plaintiff is the registered owner of the immovable property in dispute.

He stated that he repaid to the second and third defendants an amount of money between US$7,000 and US$10,000 in an attempt to liquidate the debt, but, could not catch up with the increasing interest which was being charged on the amount loaned.

He stated that he had known the fifth respondent as a friend prior to meeting the third defendant. He was introduced to the third defendant by the fifth defendant. He then approached the third respondent for a loan which he was duly given as stated above.

When he was having problems in repaying the loan, the third defendant approached the fifth defendant to inquire as to whether the witness had property which could be sold to raise money to repay the balance outstanding on the loan which had gone up to US$70,000.

Interest was being charged on the outstanding amount every month.

In his evidence, the fifth respondent then went and paid to the third respondent the amount outstanding. At the time that the fifth respondent paid off the amount, it had gone up to about US$90,000. The witness stated, that, the fifth defendant wanted to be paid US$100,000 for having settled the debt owed to the second and third defendants.

He deposed to an affidavit prepared by Mr Mlotshwa, a legal practitioner who had been instructed by the first plaintiff's wife, on 24 June 2010. The affidavit was produced as part of the plaintiff's documents.

The second defendant led evidence through one Simon Charehwa who is its Public Officer.

His evidence was that the second defendant, represented by Frank Buyanga, the third defendant, purchased shares in the second plaintiff from Alexious Mashingaidze Dera, the first defendant.

The witness stated, that, the person who dealt directly with the plaintiff was the third defendant.

He, the witness, was responsible for compilation of the information in the files of the second defendant.

He stated, that, Alexious Mashingaidze Dera handed over to Frank Buyanga share certificates relating to the shares as well as resolutions authorising the sale.

The share certificate, according to the witness, was taken to the United Kingdom.

The rest of the documents were kept in the file at the local office. The witness identified a document at page 7 of Exhibit 2 as the resolution which was given by Alexious Dera to the third defendant.

At the time that the transactions were conducted, he was a Clerk.

In cross-examination, he readily admitted that he was not involved when the agreement between the first defendant and the second defendant, acting through the third defendant, was concluded.

He stated that the shares in the first plaintiff were purchased for US$36,350.

He stated, that, the house in dispute, which was the only asset of the first plaintiff, was sold by the second defendant, to the fourth defendant, for a sum of US$110,000, in September 2009.

He stated, that, he knew the first defendant prior to the transaction relating to the shares of the first plaintiff as he used to render accounting services to the third defendant on a part-time basis.

The fifth defendant gave evidence on his behalf as well as on behalf of the fourth defendant.

He is a director of the fourth defendant which is a family company. He stated that he purchased the immovable property in dispute on 15 September 2009. At the time of the agreement, he was shown a Form CR14 and a Form CR6 and a resolution by one James Nqindi.

According to him, James Nqindi and Frank Buyanga were the directors of the second plaintiff at the time that he purchased the property.

He stated that he first knew the first defendant in 2007. He denied that they were friends, but that he was just someone he knew.

The witness stated, that, he had known the third defendant since 2004. He stated, that, the property was vacant at the time that he purchased it. He indicated to the Court, that, the fourth defendant was prepared to relinquish the property if it was paid back the money it had paid for the property. He stated that he purchased the property from the second plaintiff.

The fourth defendant took transfer of the property in 2010.

He described the main structure on the property as a four-bedroomed house, with four bathrooms, a kitchen, lounge, dining room and an additional lounge or office. There is an outbuilding for employees, as well as a swimming pool and a gazebo. At the time of the purchase, there was, according to him, a derelict tennis court. He removed the tennis court with the intention of resurfacing it. The property, which is about an acre, is walled and gated. The main house is partly a double storey, with a room upstairs. The main bedroom has a dressing area. There is a borehole.

The issues which were referred to trial are set out in the joint pre-trial conference minute as follows:

1. Whether or not a valid agreement of sale of shares, allegedly belonging to the minor children (herein represented by the first plaintiff), was entered into between the first and second and third defendants.

2. Whether or not the changes relating to second plaintiff's directors and shareholders, effected as a result of any such agreement, is valid. If not, whether or not such directors and shareholders should revert back (sic) to the period before the 12th of February 2009.

3. Whether or not the second defendant validly entered into an agreement for the sale of the immovable property, being Stand Number 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant with fourth and fifth defendants. If not, whether the registration of title into the fourth defendant (sic) must be set aside and the original deed reinstated.

4. Whether or not the plaintiffs have any claim for damages against the second to fifth defendants arising out of the structural alterations to the immovable property. If they have a claim, what the quantum of damages recoverable is.

5. Whether or not, if the plaintiffs succeed, the fourth defendant should remain in possession of the immovable property on the basis of a lien and until any such claim as it may have (has) been realized....,.

As regards issue number 4, no evidence was placed before the Court of the full extent of the damage to the property arising out of structural alterations to the property or the quantum of the loss occasioned by such damage.

Apart from the mention by the first plaintiff that the tennis court had been dug out, nothing more was said.

In the premises, the second to fifth defendants are absolved from the instance on that claim.

I do not believe, too, that this Court should order assessment of damage caused by any structural alterations to the property and/or payment of the amount assessed by such assessor as claimed in the plaintiffs' summons.

What would happen if his assessment is contested by any of the other parties?

The onus was on the plaintiffs to prove any loss occasioned by such alterations.

They failed to discharge that onus. It cannot be left to a third party to determine the loss.

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

The appellant instituted summons at Rusape Magistrate Court claiming $5,000 from the respondent being general damages arising from the alleged unlawful destruction of the appellant's temporary structure constructed at No.7688 without a valid court order as well as for harassing the appellant's wife at the latter's work place without the appellant's consent.

After the issuing out of the summons, the appellant served the respondent with various court processes, and, on 9 April 2019, the appellant filed an application for default judgment.

Unfortunately, on 19 April 2019, the learned magistrate dismissed the application.

Un-amused by the dismissal, the appellant noted an appeal on 16 August 2019 outlining the grounds of appeal as follows:

“1. The respondent failed to plead hence the request for default judgment.

2. The learned magistrate erred to take into cognizance the appellant served the respondent with all the papers including the ones he further requested, but, for the second time, he defaulted to submit his plea.

3. The learned magistrate erred in failing to take cognizance that the appellant had stated, in case No. 2030/17 that the demolition of the temporal structure was illegal and it would attract costs.

4. The learned magistrate erred in failing to take into cognizance, that, the appellant applied for an interdict against the respondent in case 2030/17 and (he), the respondent, went further to demolish the appellant's structure without a court order.

5. The learned magistrate failed to consider, that, the appellant was allowed to erect a temporal structure after he had approached the Housing Director for approval.

6. The learned magistrate erred in failing to take into cognizance that no building plan is required in the Model Building By Laws Part 4 section 39 (1, 2, 3 and 4).

7. The learned magistrate erred in failing to take cognizance that the section she quoted from the respondent's papers does not apply to the contract and structure that the appellant had put up, the section consists of enforcement and prohibition orders.

8. The learned magistrate failed to take into cognizance that the respondent had harassed the appellant's wife without any reason to do so, on the matter she was not aware of.

9. The learned magistrate failed to take into cognizance that it was not the respondent's call to demolish the structure without a court order, thus, no need for the appellant to appeal for case no. 2030/17.”

When the respondent was served with the summons, it entered appearance to defend providing its address of service as 294 Chimurenga Street, Box 414 Rusape - its legal practitioners offices.

The appellant filed a notice to plead, and other subsequent pleadings, not on this given address, but, at 398 Manda Avenue Rusape - the Rusape Town Council's Offices.

The subject notice to plead, dated 28 March 2018, which led to the appellant applying for default judgement, was not served on the respondent's address of service but at the Town Council's physical address.

Order 10(3)(b) of the Magistrates Court (Civil) Rules, 2019 SI11 of 2019 provides as follows:

“(b) Subject to subrule (2), given an address for service within a radius of 15km of the courthouse from which the summons was issued, and;”

The operative clause relating to the issue of address of service is identical to the one which was in SI290 of the Magistrate (Civil) Rules, 1980.

Once a party has notified the Clerk of Court of its address of service, the other party shall serve all proceedings, pleadings, or processes on the chosen address.

Service of process, on any other address, other than the chosen address of service provided by the litigant, in my view, will not be in terms of the Rules and will be a nullity: see Order 7 Rule 5(2)(b) of the Magistrates Court (Civil) Rules, 2019…,.

On 9 April 2018, when the appellant filed a request for default judgment, on the basis that the defendant had been duly served and had not submitted its plea, it was not correct.

The appellant had failed to serve the process on the supplied address of service for the respondent, which was Messrs Chiwanza and Partners Legal practitioners, 294 Chimurenga Street. P.O. Box 414 Rusape.

That was the address of service to be used by the respondent, and that was where the Messenger of Court was to serve the process or pleadings.

The appellant did not follow the procedure in the rules of the court a quo and the application for default was not properly before the court; the appellant's papers were not in order, and the learned magistrate ought to have given directions to the appellant to comply with the rules than to dismiss the application on merits.

In doing so, the learned magistrate misdirected herself.

In an application for default judgement, where the plaintiff is claiming damages, as in casu, the plaintiff has to comply with Order 11(4)(5)(a) of the Magistrates Court (Civil) Rules, 2019 which provides:

“5. The Clerk of Court shall refer to the court any request made for the entry of judgment on a claim for damages; and –

(a) The plaintiff shall furnish to the court evidence, either written or oral, of the nature and extent of the damages suffered by him or her;”

See also matter of Mavheya v Mutangiri and Others 1997 (2) ZLR 462…,.

The order of the court a quo, in dismissing the application, was, in my view, not proper in the sense, that, the appellant's claim was prematurely terminated, and, for certain, the appellant did not know the way forward in the circumstances.

In his mind, he believed that the respondent had failed to file its plea within the time expected of it - albeit the wrong method of service of process.

As already ruled above, the court ought to have given the appellant an opportunity to comply with the Rules and resubmit its application in the event that the respondent continued to be in default of filing its plea or other processes....,.

The appeal succeeds on the reasons outlined herein, and the following order is returned:

1. The appeal is upheld.

2. The matter is remitted to the Magistrate Court for continuation before any magistrate.

3. The plaintiff is granted leave to issue a fresh notice to plead in terms of the Magistrate Court Rules and serve it on the defendant at the registered address of service.

4. Costs to be in the cause.

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

All in the love of a pet! Many linguistic authors have described a pet to include “favourite, preference, darling, idol, jewel, apple of one's eye, matinee, or, in French, enfante gâte.”

Having been frustrated or failed by human friends, whether male or female, humans all over the world from time immemorial had experimented with the animal world to find a real mate or friend. These animal friends stretch from domestic to wild animals, felines, bovines, canines, serpents, birds, fish and others, the list is endless. Some of the pests are fiery and dangerous to accommodate in a residential environment, but all has been done in the name of pet love.

These pets, to some of the humans, evolved into both great and false friends, and, as the saying goes “false friends are like migratory birds, they fly away in the cold weather.”

But, to the appellant in this case, he had managed to show a true character of a friend.

It may seem superfluous to say anything more since good friends are among life's greatest blessings and the lack or loss of them the saddest of deprivations, anything which reminds them of the value of a good friend does not come amiss.

The appellant bought a canine pet when it was young and cared for it for a considerable period which ran into years. During that period, a great alliance developed. As usual, friendship is a hard, strong, slow growing beautiful thing. The soul in which friendship grows is the social set up in which one lives.

Friends are made through the heart not the eye.

The appellant was not the only one who won the heart of the dog, but, his sons and the whole family became a total symbiosis to the dog - that is, from the photographs which were produced in the court a quo, filed of record.

The photographic images depict a real charming togetherness.

The Hebrew Scriptures accurately captures that “A faithful friend is a sure shelter. Whoever finds one has found a rare treasure. A faithful friend is something beyond price, there is no measuring his worth.”

If the dog could have been asked, during its life time, it could have equally vividly described how glorious its life was in the company of the appellant's family.

Friendship begins with a long standing invitation. It says to the other you get on well with; let us tear down the barriers between us, let us pledge ourselves not to fight one another, but rather to comfort, challenge and support.

One has to use a mirror to see one's face. You use a friend to see your soul. Thus, friendship is a union of one mind with another.

Men become like those they associate with.

Experience globally shows, that, pet lovers from the western world go to the extent of sharing their beds and relaxing rooms with their pets, and the majority in the orient dismiss their dogs to the outside when they retire, and, in most instances, the pet or dog has to find a warm place for the night; and, for the merry makers, they “patrol” the environment exposing themselves to the local authority shenanigans, who, in the spirit of controlling infested dogs, end up shooting residents pest - as what happened in this case.

On 15 March 2018, the appellant issued summons against the local authority, and its employees, claiming:

“(a) Payment of the sum of $2,800 being special damages;

(b) Payment of the sum of $200 being general damages;

(c) Interest a tempore morae from the date of judgment to date of payment; and

(d) Costs of suit.”

According to the synopsis of the appellant's particulars of claim filed in the Magistrate's Court, the first respondent is the local authority, the second respondent is the Town Secretary, and the third respondent is the Chief Security Officer.

On 16 July 2017, and at 21:25 hours, the respondent's employees wrongfully and unlawfully shot and killed the appellant's dog at the appellant's House No.1187 Mabvazuva Suburb, Rusape.

As a result of the respondent's wrongful and unlawful conduct, the appellant suffered damages, detailed as follows:

(a) Special damages for money spent on the dog: purchase money as a puppy, its upkeep, castration, dipping chemicals and treatments the dog received for the continuous 9 years the appellant had the dog all totalling to $2,500; the dog's market value of $300. Total $2,800.

(b) General damages for trauma, pain and suffering which includes: sentimental value, loss of companionship, love and affection: $1,000.

Emotional distress, that is to say, seeing the dog die, the time it is going to heal the wound left in the appellant's heart and mind caused by the sight of a loved pet dying after being heartlessly butchered, which dog the appellant had not anticipated would die in that manner. As he was in the process of getting ready to feed it with a meal, it died, having never tasted: $1,000.

In the respondents plea filed on their behalf, they contended, that, they were working with the Zimbabwe Republic Police and other interested persons.

On the day in question, Sunday was a working day, stray and feral dogs spread diseases and attack people - even on Sundays. The dogs, in general, including the appellant's, were shot after all necessary legal steps have been taken, and were shot by a police detail.

Hence, the respondents conduct was lawful and guarded by the police.

The appellant did not suffer any damages at all, or, even if the appellant suffered any damages, he did not suffer damages shown on the pleadings.

The respondents denied that any of the dogs shot belonged to the appellant. The appellant was put to strict proof.

The matter proceeded to trial, and, after the court a quo heard all the parties, proceeded to dismiss the appellant's claim.

The appellant noted an appeal against the learned magistrate's judgment on 9 January 2019.

The grounds of appeal cover 10 paragraphs. They are not specific, and they cover both fact and law stretching from statutes and by-laws.

I will try to decipher from this thicket what the appellant sought to frame as grounds of appeal.

(1) The learned magistrate was biased against the appellant who was a self-actor, and, in so doing, she erred.

(2) The learned magistrate erred by making a finding based on a document which was not produced.

(3) The learned magistrate erred in refusing to go for an inspection in loco.

(4) The learned magistrate erred in justifying the killing of the dog; the respondents should have been found liable of the wrongful shooting of the dog.

(5) The learned magistrate erred in dismissing the appellant's claim for damages.

These five grounds, I conclude, may form the pith of the appellant's appeal.

In future, litigants are encouraged to seek the advice of legal advisory centres, like the Legal Aid Clinic, to prepare grounds of appeal so as to crisply outline issues for determination by the court.

The appellant went on to write a long essay and labelling such as heads of argument.

Throughout all the pleadings and what he termed the pleadings and what his story is consistent. The local authority killed an innocent dog which was at its owner's stead. The respondents ought not to have resorted to killing the dog but should have captured it....,.

WHETHER THE COURT A QUO ERRED IN JUSTIFYING THE KILLING OF THE DOG

From the appellant's papers filed of record, the appellant contends, that, the respondents unlawfully killed his dog and the first respondent's agents/employees admitted, in a letter written to the appellant, that they had killed the subject dog.

The manner the appellant insists with the civil claim for damages for the loss of the dog, as well as for general damages premised on the loss, shows that his dog is the one which was killed during the operation executed by the respondents and the police.

Generally, local authorities, through by-laws, have set conditions that owners of pets should meet.

The cur should be licensed through payment of $10 to the local authority and this is applicable to the first respondent. When the licensing fees are paid, the owner of the dog is issued with a collar which should be tied to the dog's neck. The collars is inscribed with the name of the owner. The owner is further required to provide a chain to the dog for purposes of regulating its movement or to facilitate control of the dog when the owner is moving on public roads or thoroughfares.

As a further precautionary safety device, the owner of the dog should put a security fence around his or her residence and a safety gate to avoid the willy-nilly movement of an unsecured dog for the safety of the dog itself and members of the public at large.

The dog should be confined between the hours of 2100 hours and 0600 hours.

When a dog is not licensed, collared, or secured, the respondent contends, that, such a dog qualifies to be stray.

It is not controverted, that, on 16 July 2017, the appellant's alleged dog “Spooky” did not have a collar around its neck, nor a chain, and, of course, was not under control by the appellant.

Besides the emphatic insistence by the appellant, that the dog belongs to him, he could not provide any credible evidence to prove ownership of that dog.

The letter from the first respondent, admitting that the dog belonged to the appellant, was not enough to gauge whether the appellant abided by the requirements demanded by the first respondent to keep a dog at his premises.

The issue of ownership, in my view, is a peripheral one: the crucial question/decision to be made is whether, at the time the dog was shot by the respondents, was a stray?

The appellant admitted, that, there is no perimeter fence at his house, nor a wall - the dog freely moved in and out of the premises.

At the time the dog was allegedly shot, the appellant was virtually not in control of the dog. He proactively reacted after hearing the gunshot outside his house, only to see the dog lying dead.

The respondents, throughout the proceedings, vehemently insisted, that, the law permits them to eradicate stray dogs. The Regulations allow them to destroy pets which are vicious, diseased, and harmful to human beings….,.

Tarisai Leonard Manzonzo testified, that, before the operation, the first respondent flights an advert in the Sunday Mail tabloid or drive around suburbs using hailers advising the public to keep dogs and cats secured, warn them that if found on the roads, stray pets would be captured or eliminated.

Before 16 July 2017, they had done that, and, consequently, any subsequent killing of stray dogs was lawful.

The use of firearm for any operation exposes great risk to the general public, whether the operation is done by the police, the military, or the municipal police - it is inherently dangerous.

It is necessary that members of the public be given adequate instructions, warning, and information.

It is not adequate for local authorities to flight adverts in the Sunday Mail newspaper; not all town dwellers can afford to purchase a tabloid, moreso a Sunday Mail.

It is instructive, that, before carrying out an operation of eliminating stray pets, in addition to the adverts, the local authority should ensure, through councillors of each affected ward, dissemination of information for the pending operation; hold meetings with the affected area, dropping flyers, where possible, and place posters on strategic positions so as to minimise danger to the licenced pets as well as public - failing which responsibility for tragedies during such operations may well rest on the shoulders of local authorities.

It is desirable, I think, that, the facts of this case be brought to the attention of local authorities so that they may consider steps can be taken to improve the dissemination of warning information to those tasked to execute the operation, so that blame should be moved from individuals to local authorities.

I am satisfied, in this case, that, the respondents did not prove that they extensively exhausted the dissemination of the information before carrying out the operation.

It is apparent that many residents of Rusape were unaware of the operation and were taken by surprise, moreso when they heard gunshots in residential set-ups.

A gunshot upsets lame-hearted people and causes panic; it would be handled comfortably if people are pre-warned.

Had the appellant met all other requirements to prove his matter, chances were that he had laid a fundamental basis for his claim - but he had a mountain to climb.

The real issue before the court is not whether the operation of the respondents was unlawful or lawful, but whether the respondents were negligent.

It is only causative negligence that gives rise to liability.

The conclusion I reach, at this stage, is that the appellant's dog was unlicensed, uncollared, un-identified and was in the open when it was shot.

In principle, it qualified to be a stray and open to elimination by the respondents for the purposes of protecting the public at large from dog bites or harmful diseases.

The shooting of the dog was lawful in the circumstances.

WHETHER THE MAGISTRATE ERRED IN DISMISSING APPELLANT'S CLAIM FOR DAMAGES

As already outlined herein above, this is the gravamen of the appeal.

The appellant, seeking to rely on negligence, sued the respondents for both general and special damages which arose from the killing of the dog “Spooky”.

Indeed, the claim was spooky because it was unsuccessful and the appellant appealed to this court.

There are various breeds of dogs, stretching from Afgan hound, Ariedale terrier, Alsatian, barbet, basset beagle, sleath, boxer, greyhound, bulldog; more than fifty species to include Chihuahua and German shepherd.

The appellant was unable to describe what type his was.

These classes of dogs fetch various amounts on the open market, whether one is acquiring or disposing of them. Without the precise name, one cannot properly put value to it and this was a challenge which the appellant met during the proceedings.

The value of $300 was not supported by evidence from a dog dealer or a veterinary doctor - it was put price.

A litigant is required to look for an expert in the canine field to properly place monetary value on a specie of a dog. Where such evidence is lacking, it will be taken that the plaintiff had failed to prove that element.

The cost of acquiring the dog and maintaining it for a period of nine (9) years, in my view, was irrelevant.

No one, including the appellant, knew as when the dog was going to die.

The appellant had a duty to look after the dog anyway; what was vital was the replacement value, which he placed at $300.

He ought to have supported that value by evidence - and he failed to discharge that onus.

The issue of special and general damages is closely linked to the issue of negligence.

In the matter of Maketo and Another v Wood & Others 1994 (1) ZLR 102 (H)…, it was held that:

“Third defendant was liable on the grounds that there was sufficient relationship of proximity, that, in the reasonable contemplation of the third defendant, carelessness on its own part or on the part of its agents might be likely to cause damages to the plaintiffs….,.”

In the matter of Van Buuren v Minister of Transport 2000 (1) ZLR 292 (H) CHATIKOBO J pointed out the following:

“The passage shows, in my opinion, that, the most weighty consideration from which legal duty may be implied in a permissive power is that the object of the power is to effectuate either a private or a public right - a right requiring that the power conferred shall be exercised and therefore capable of enforcement.

Negligence is the failure to take proper care, and, proper care is the care, which, according to law, would be taken by a prudent and reasonable man.

The question whether in any given situation, a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be decided upon the consideration of all the circumstances. The law does not set up impossible standards, and it does not make extravagant demands.

Moreover, a person is entitled to assume that others will take reasonable care of themselves and will keep the eyes open.”…,.

In the matter of Musadzukwa v Minister of Home Affairs and Another 2000 (1) ZLR 405 the court held that:

“In order to determine the wrongfulness and reasonableness of any given conduct, the court is enjoined to make a value judgment based, among other things, contemporary bori mores, in the sense of the convictions of the community as to what is fair, just and equitable.”

MALABA JA…, in United Bottlers (Private) Limited v Shambawamedza 2002 (1) ZLR 341 (S) reiterated the following:

“The next question to be decided by the Learned Judge was one of fault. It was whether the defendant's employee negligently caused the damage suffered by the plaintiff. It has been said that negligence is a question of fact and the onus of proving it is on the party alleging it. A person is negligent if he did not act as a reasonable man would have acted in the particular circumstances. He will be held liable for the actual consequences of his negligence which are reasonably foreseeable.”

In Cape Town Municipality v Paine 1923 AD 207…, INNES CJ said:

“It has repeatedly been laid down in this Court, that, accountability for un-intentioned injury depends on culpa - the failure to observe that degree of care which a reasonable man would have observed.

I use the term reasonable man to denote the diligens paterfamilias of Roman Law - the average prudent person.

Every man has a right not to be injured in his person or property by the negligence of another - and that involves a duty on each to exercise due and reasonable care.

The question whether, in any given situation, a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly is one to be decided in each case upon a consideration of all circumstances.

Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established and it only remains to ascertain whether it has been discharged.”

See also Lomagundi Sheetmetal & Engineering (Pvt) Ltd v Basson 1973 (1) ZLR 356 (A)…,.

The first respondent has a legal duty towards its constituency against any damage that can arise during the operation for eliminating stray pets.

Where a party proves negligence against the local authority, where such actual consequences of the local authority's negligence are reasonably foreseeable, the local authority will be held liable.

However, in casu, the appellant failed to prove that the dog was lawfully kept at his place; was licenced; and secured. He failed to prove that the dog was his. He failed to prove negligence on the part of the respondents.

Once I ruled that the killing of the dog was lawful, there is no basis to look at the aspect of damages.

Damages arise from the unlawfulness of the killing and the duty of care on the part of the respondents.

The appellant failed to pass that hurdle and hence the appeal was dismissed in its entirety. The appellant has to pay the respondents wasted costs.

In the result, the appeal be and is hereby dismissed with costs.

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

At the commencement of the trial, the plaintiff sought an amendment to its claim by the deletion of the amounts of fourteen billion eight hundred million and six hundred and sixty six billion dollars and their substitution with the amounts of US$ twenty two thousand five hundred and sixty dollars and one million fifteen thousand four hundred and seventy dollars, respectively; the first amount being the replacement cost of one vehicle and the second amount being the global sum for forty-five brand new trucks.

I granted the application to amend in the face of opposition from counsel for the defendants and indicated that I would furnish my reasons together with the reasons for judgment....,.

I turn now to the determination of the matter on the merits.

The plaintiff in this matter is a commercial bank which is primarily involved in lending to persons, both corporate and individuals, engaged in agricultural pursuits. It is a statutory corporation.

In 2006, it flighted an invitation for the tender of supply of trucks of an engine capacity ranging from 1.8 to 2 litres.

The invitation to tender, the tender by the first defendant, and the contract itself were the main documents produced before me by the parties.

The invitation is dated 2 November 2006, and calls upon established companies to urgently tender for the supply and delivery of brand new trucks within the range of 1.8L to 2L. Certain other specifications not germane to this dispute are listed. The invitation then spells out information that is 'mandatory' to enable the plaintiff to make a concrete acceptance of the quotation and contract decision.

Firstly, it is stated, that, prices quoted shall be in Zimbabwe dollars, which price shall be fixed during the bidder's performance of the contract and not subject to any variation of any account.

The invitation also spelt out, that, a bid submitted with an adjustable price condition would be treated as non-responsive and would be rejected.

Prices were required to be inclusive of value added tax.

The invitation to tender also required the company profile of the bidder as well as a list of major clients and contactable references.

Added to this was the requirement of payment schedules, delivery, and fallback position should delivery not be effected as anticipated.

Other stipulated requirements are not germane to this dispute and will consequently not be referred to.

The first defendant was amongst the companies that responded to the tender. After an adjudication process, it was decided to award the tender to the first defendant and a contract for the supply of the vehicles was concluded between the parties.

Two days after the signing of the contract, the plaintiff paid an amount in excess of $1.8 billion Zimbabwe dollars into a current account operated by the first respondent with a commercial bank.

The contract provided for specific dates for delivery of the vehicles to the plaintiff.

Needless to say, the delivery schedule stated in the delivery clause was not adhered to, as the defendant defaulted; and, in fact, it has not made any delivery up to today necessitating the plaintiff issuing summons for relief from this court.

In its summons, the plaintiff prays for the delivery of the vehicles in question, or, in the alternative, for payment of the value of the vehicles as at the time of judgment.

The second and third defendants are husband and wife and the only directors of the first defendant.

The plaintiff has prayed, as against the two, for an order lifting the corporate veil and for judgment against them jointly and severally with the first defendant, on the basis that they cannot be divorced from the latter.

At the pretrial conference, three issues were extracted for trial. I will therefore dispose of the dispute on the basis of those issues.

The first issue for trial was whether the agreement made and entered into by and between the parties was conditional upon the first defendant obtaining foreign currency from the Reserve Bank of Zimbabwe.

It is pertinent, therefore, in resolving this issue, to examine the contract documents and other documents have a bearing on the relationship between the parties.

The tender bid document from the first defendant focused on the Ford Ranger 1800 STD.

A brief description of the vehicle is given, which description is on the physical features of the vehicle not its mechanical capacity. The quoted price is Z$37,500,000 per unit with a total price of Z$1,687,500,000 for the forty-five vehicles.

The quotation confirms that the price is inclusive of Value Added Tax.

A warranty is given for three years or 100,000kms whichever comes first.

The first respondent also confirmed an ability to supply and deliver at a stipulated time.

There were no indications of conditions that required to be met before delivery could be effected.

Next, the first defendant provides, in the tender document, a list of vehicles and motor cycles, that are presumably available.

There is no caption with the list to state whether these are readily available or whether the first defendant is able to easily source the same.

Pictures of the vehicles and motor cycles, together with specifications, are provided in detail.

Included in the tender documents is a letter written by the second defendant. The letter, written on 27 November 2006, opens with the sentence:

“We, the undersigned, hereby tender and should this letter be accepted in whole or part, undertake to supply Motor Vehicles as per the requirement of the tender, and in conformity with the Fund's General Conditions of Tender, and the specifications, the articles described or referred to in this document or such said articles as may be ordered by the Fund in consideration of the prices as Nickstate Investments (Pvt) Ltd are concerned.”

The contract was then concluded on the basis of these documents.

Clause 3 of the contract is in the following terms:

“It is agreed that the seller sells forty five (45) brand new Ford Ranger, pick up trucks….,. It is further agreed that the pick up trucks shall comply with the following specifications -

(i) They shall be long wheel base.

(ii) The engine capacity shall be 1.800 litres.”

Clause 4 provides that “the vehicles are bought with the following accessories on each one of them” and a list of the accessories is then provided….,.

Clause 5 of the contract reads:

“The purchase price of the vehicles is the sum of (Z$1,687,500,000) (One billion six hundred and eighty seven million, five hundred thousand Zimbabwe dollars) based on a unit price of ZW$37,500,000 (thirty seven million five hundred thousand).”

Clause 7 reads as follows:

“It is agreed that the price referred to in clause 5 above is fixed and not subject to any variation whatsoever.”

Delivery is covered in clause 9 which is in the following terms:

“The motor vehicles shall be delivered to the customer's premises, that is to say, Hurudza House No.14-16 Nelson Mandela Avenue, Harare duly registered in two batches as follows:

(i) 15 (fifteen) vehicles by 31 January 2007.

(ii) 30 (thirty) vehicles by 28 February 2007.”

In its declaration, the plaintiff alleged, that, the first defendant had breached the terms of the agreement and that despite being paid in full for the vehicles the first defendant had failed to deliver any of the vehicles, and further, that, despite numerous requests by the plaintiff, the first defendant had failed and/or neglected to deliver the said vehicles.

In response to this averment, the defendants had denied that they had failed, neglected, or refused to deliver and that the plaintiff was aware that the defendants had applied to the Reserve Bank for the allocation of foreign currency.

It was further averred by the defendants, that, the allocation was approved on 9 February 2007 but the Bank did not have the required foreign currency to avail to the defendants to fulfill the terms of the contract.

The contract concluded by the parties does not make mention of the need for the defendants to source for foreign currency to purchase the vehicles.

This is accepted by the defendants.

Their contention, however, is that the fact that the vehicles had to be imported should be presumed and it did not need to be written down.

It was contended, that, the vehicles could not be purchased in Zimbabwe dollars and payment had to be made in a currency acceptable to the manufacturer; and it is precisely because the defendants had to import the vehicles that they had approached the Reserve Bank for the allocation of foreign currency.

Although accepting that the written contract was never varied in writing, it is suggested, by the defendants, that, the parties communicated through correspondence which clearly established that there was an understanding between the parties that the defendants needed to source funds, through the Reserve Bank of Zimbabwe, in order to import the vehicles to be delivered to the plaintiff by the first defendant.

The defendants produced to court a number of letters written by the second defendant explaining or seeking to explain the delay in delivery of the vehicles.

The first letter is dated 29 January 2007 which was a mere two days before the date scheduled for the delivery of the first batch; and the explanation given for the anticipated delay in delivery is the late approval of the allocation of foreign currency.

An assurance is given, in the letter, that everything was under control.

The second letter, dated 15 February 2007, again speaks of the delays in obtaining foreign currency allocation (approval?).

The writer goes further to state, that, arrangements had been made for the first batch of fifteen vehicles to be in the country by 28 February 2007.

It was stated further, that, the supplier had refused to accept an advance payment that had been arranged due to the fact that it had come from a bank in South Africa.

The last sentence in the letter is to the effect, that, correspondence from the Reserve Bank was being attached and the defendants were vigorously pushing for payment and the vehicles would be released 'soon'.

Attached to the letter in question was a Reserve Bank approval for the defendants to pay for the vehicles through their Bank. There was no allocation of funds on the certificate produced.

The letters addressed to the plaintiff were not responded to.

The plaintiff's witness, Mrs Chinodya, explained that when the defendants started coming up with excuses on the delivery of the vehicles, they were requested to put their explanations in writing.

The witness told the court, that, the position of the plaintiff was that the contract was for the supply and delivery of vehicles and not for the importation of the same.

The plaintiff was hopeful that the endevours by the defendants would succeed, but, when the contract was concluded, it was never a term of the contract that the defendants would require an allocation of foreign currency from the Reserve Bank of Zimbabwe in order for them to perform their obligations on the contract.

The contract was never varied - a position accepted by the defendants.

I was unable to accept the contention by counsel for the defendants, that, the fact that the vehicles would be imported was presumed and it did not need to be written in the contract.

He did not cite any authority for this submission, and I am not persuaded that this is a correct principle of the law of contract.

Apart from the letters written by the second defendant, after the contract was concluded, I have not seen any evidence pointing to a condition that the defendants had to obtain foreign currency from the Reserve Bank of Zimbabwe in order to comply with their obligations under the agreement.

The plaintiff's witness, Mrs Chinodya, emphasized, that, what was concluded was in fact an agreement of sale of the stated number of vehicles and that tenders were invited for supply of the vehicles in the local currency.

She was adamant, that, any tenders that were quoted in foreign currency were turned down.

She also said, that, the issue of the need for foreign currency arose after the first defendant failed to meet the delivery dates, and, in her view, it was nothing but an excuse.

I find no reason to doubt the veracity of her evidence on this issue.

I find for the plaintiff.

Her evidence was given in a straight forward manner and she made a better impression on the court than did the second defendant who was very evasive and unwilling to answer difficult questions under cross examination.

Overall, looking at the evidence of the two witnesses against the backdrop of the documents which preceded the contract, and the contract itself, it is my view that the contract was not conditional upon the first defendant being allocated foreign currency by the Reserve Bank as pleaded by the defendants.

I find that, therefore, that performance by the defendants was not conditional upon obtaining foreign currency from the Reserve Bank....,.

I turn now to the substance of the relief being prayed for.

The plaintiff has claimed for specific performance, or, in the alternative, payment of the replacement cost or value of the vehicles.

It is trite that our law entitles a plaintiff to claim specific performance and it is within the discretion of the court to decide whether or not the plaintiff is, on the facts of the matter before it, entitled to an order for specific performance. It is generally accepted, that, the court's discretion must be exercised judicially upon a consideration of all the relevant facts.

Legally, a seller has the obligation to deliver the thing sold to the purchaser in a deliverable condition.

That they are obligated to do this has never been denied by the defendants.

It emerged, in evidence, that, the vehicles which the parties had contracted for had gone out of production. It was not in dispute that it was possible for the manufacturer to supply the model but that it would be at a higher cost than normal.

In view of this development, the defendants contended, that, they were unable to comply with an order for specific performance due to impossibility.

Ordinarily, the onus to establish impossibility of performance lies on the defendant: see Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398.

The defendant must place facts before the court which may lead the court to find, that, it is impossible for the defendant to perform its obligations in terms of the contract.

The defendants have not pleaded impossibility of performance, and, in a plea filed on their behalf, on 4 December 2007, they were evincing a willingness to abide by the terms of the contract provided they were allocated foreign currency by the Reserve Bank of Zimbabwe.

Further to that, in a summary of evidence filed more than a year later, the defendants, again, aver that they are willing to perform the contracts if the foreign currency is availed.

Yet, in his evidence, the second defendant claimed that he had informed the plaintiff, in letters written to the legal practitioners, that the manufacturer had discontinued the assembly of the model being pursued by the plaintiff.

It seems to me, that, the second defendant is not being candid with this court.

It turns out, however, that the plaintiff has established, through independent means, that the vehicle is no longer in production and I have to accept the evidence from the defendants, that, the model the parties had contracted for is no longer in production.

It is therefore quite obvious, that, the remedy of specific performance is no longer available for the plaintiff - the only possible remedy now being an award of damages.

It now remains for me to determine the question of damages.

At the commencement of the trial, I allowed an amendment to the plaintiff's claim from one sounding in Zimbabwe dollars to one for United States dollars.

The plaintiff called one Israel Ukama to give evidence on the amount being sought as damages.

The witness told the court, that, he was employed as a manager with Coppola Motors, a company involved in the purchase and sale of vehicles. The company has been involved in that business from its incorporation in 1999.

He was referred to various invoices sent to the plaintiff by a number of companies, including his own, relating to prices of trucks available on the market.

He confirmed that the Ford Ranger 1.8 was no longer in production and that it had been replaced by the Ford Ranger 2.2 which had a bigger engine capacity. He said that the nearest vehicle to the Ford Ranger 1.8 was the Mazda BT50 or the Ford Ranger 2.2I single cab in terms of price and not engine capacity; although these last two had the same engine capacity, the Mazda however was a twin cab.

He said that these were the cheapest vehicles on the market.

He was unable to give the specifics of the vehicles or technical figures on the vehicles that he had quoted on and he said he could not as it had not been suggested to him that he would have to do so.

His evidence was that the BT50 was being sold at US$18,000 and the Ford Ranger 2.2I at US$20,000.

A plaintiff seeking payment of damages must prove his damages.

Where a plaintiff fails to prove his damages, the court may grant absolution from the instance in favour of the defendant.

However, where a plaintiff has led all the evidence it is within his power to adduce, then, the court must assess the damages based on the evidence placed before it as best as it can.

The court can only consider this principle if the plaintiff shows that he has suffered some damages and that only the quantum remains in issue: see Bowman v Stanford 1950 (2) SA 210 (D).

At pp222-3 SELKE J commented:

“But, to make such dicta into inflexible rules applicable in every instance, without regard to the circumstances of the parties in respect of the availability of the evidence, or, to the precise nature of the claim or the particular injury or loss claimed for, would, it seems to me, result, not infrequently, in injustice. There must be many types of claims due to breaches of contract which do not admit, for various reasons, of strict or detailed proof in terms of so much money. For example, loss of business, especially in relation to the future, cf. Bower v Sparks, Young and Farmers Meat Industries Ltd 1936 NPD 1, at p23.”

It is generally accepted, that, damages for breach of contract are to be calculated at the time when performance was due, because, the import behind an award of contractual damages is to place the plaintiff in the position he would have occupied had the contract been fulfilled.

The rationale for fixing the time of assessment to the date when performance was due is to avoid the plaintiff or defendant being unfairly favoured through the vagaries of prices of a fluctuating market.

Even where the seller repudiates the contract before the time fixed for delivery and the buyer accepts the repudiation as an anticipatory breach, the buyer may elect to bring an action for damages, but, prima facie, damages are still to be assessed as at the date fixed for due performance.

This is however not the issue for determination before me. The seller in casu did not repudiate. The seller failed to deliver on the fixed date for delivery but promised to deliver even after summons was issued.

The buyer therefore has an option to claim for an order for specific performance or for payment of money (ad pecuniam solvendum) in pursuance of the contract: see Bray & Edwards v Rhedesia Consolidated Ltd 1911 SR 60.

When a purchaser claims for specific performance for the item contracted for, a purchaser chooses not to crystallize his claim. By making this election, the purchaser has shown a willingness to treat the obligation by the seller to deliver as still continuing and to it with the value it may have at the date of trial.

Where the court awards the purchaser specific performance with damages failing delivery, the compensation is fixed in relation to the value of the item at the date of trial: see Radiotronics (Pty) Ltd v Scott Lindberg & Co Ltd 1951 (1) SA 312; Avery v Bowden (1856) 26 LJQB 3 119 ER 1119.

It is clear that I cannot award specific performance as the vehicles contracted for have been phased out from production. Even the defendants finally conceded an inability to effect delivery in terms of the contract.

The only option is to award the plaintiff damages representing the value of the vehicles that it purchased from the defendants.

As the vehicles are no longer on the market, this is no easy task. I will have to assess the damages on the evidence that has been placed before me.

The plaintiff has submitted that damages should be assessed based on the value of the Mazda BT50 as it is the vehicle nearest to the Ford Ranger 1.8L in terms of engine capacity.

Indeed, the second defendant had suggested, in a letter to the plaintiff, that it, the plaintiff, purchases the vehicles as alternative whilst the parties awaited delivery of the Ford Ranger 1.8L from South Africa.

The Mazda BT50I is valued at US$18,000 per unit and is readily available in the country.

It seems to me only fitting that I award damages to the plaintiff based on the value of the Mazda. I will therefore issue an order for payment by the defendants of damages equal to 45 Mazda BT50I.

In the premises, I will order as follows:

IT IS HEREBY ORDERED:

1. The defendants be and are hereby ordered, jointly and severally, the one paying the others to be absolved, to pay to the plaintiff the sum of US$850,000 (US Eight Hundred and Fifty Thousand Dollars) together with interest thereon at the prescribed rate with effect from the date of judgment to the date of payment in full.

2. The defendants shall, jointly and severally, the one paying the others to be absolved, pay the plaintiff's costs of suit on the legal practitioner client scale as provided for in the Law Society tariff for legal practitioners.

HH435-18 : CHIDO MATEWA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: CHIKOWERO J

The plaintiff claimed, that, in or about October 2009, the defendant, through its employees, unlawfully and wrongfully removed electrical gadgets from her farm in Nyazura.

On the employees being apprehended, the defendant went on to make a total of four undertakings to restore electricity supply at the farm.

The undertakings were accompanied by assurances to the plaintiff to proceed with her farming activities as the restoration of electricity would enable her to irrigate her crop.

On the basis of the undertakings, the plaintiff, who had planted ten hectares of tobacco, went on to plant an additional twenty hectares of tobacco and twenty-five hectares of sugar beans.

The undertakings, or promises, were not honoured by the defendant. The plaintiff could not therefore irrigate her tobacco and sugar bean crop.

It suffered moisture stress and wilted. The soya bean crop for the 2009-2010 season was a total write off. The tobacco harvest for the same season was bad. It could not even cover her labour costs. It was therefore a total loss.

She therefore claimed US$500,000 as damages for the actual loss of earnings in respect of the total of thirty hectares tobacco crop and twenty hectares sugar bean crop. In addition, she claimed US$200,000 being damages for consequential loss.

By way of further particulars, the plaintiff claimed that US$400,000 were damages in respect of the thirty hectares of tobacco for the 2009-2010 as well as the 2010-2011 farming seasons. The US$100,000 were damages in relation to the twenty hectares of sugar beans over the same period....,.

Isaac Ramire's evidence advanced her case not at all.

He admitted, that, he made records on the quantum and nature of her 2009-2010 farming season crop but did not bring such records to court.

Crop assessment reports are recorded. In the absence of such records, the court has nothing to go by.

The plaintiff admitted, that, she did not take any photographs of her 2009-2010 tobacco and sugar bean crop.

Further, as it is the 2009-2010 farming season crop which, according to her testimony, suffered moisture stress and wilted, no reason was given as to why her claim for damages extended to the 2010-2011 and 2011-2012 farming seasons.

It was admitted by the plaintiff and her witness, that, neither produced documentary evidence of the selling price of tobacco and sugar beans for the 2009-2010 season nor at all.

Damages must not be too remote: Business Law in Zimbabwe by R H CHRISTIE, Juta and Co. Ltd 1998…,.

I found no connection between the consequential damages claim of US$200,000 and the absence of electricity and irrigation at the farm.

The unproved losses of cattle, fruit trees, irrigation equipment, and roofing sheets had no discernible link with the absence of electricity and irrigation....,.

In the result, the plaintiff, having failed to prove her case in respect of both liability and quantum it be and is hereby ordered that her claim is dismissed with costs.

HMT34-20 : MARILYN BAXTER vs FUNGISAI CHIROCHANGU and RONALD CHIROCHANGU
Ruled By: MWAYERA J and MUZENDA J

This is an appeal brought by the appellant against the whole of the judgement issued by the Provincial Magistrate sitting at Mutare on the 3rd of January 2020.

The appellant spelt out the grounds of appeal as follows:

“1. The Honourable court below erred and grossly misdirected itself in law in ordering appellant's eviction from her home without considering all the relevant circumstances as contemplated in section 74 of the Constitution of Zimbabwe Amendment (No.20 Act 2013).

2. The court below erred and grossly misdirected itself in granting summary judgement over an illiquid claim for holding over damages.

3. The court a quo grossly erred and misdirected itself in law in ordering appellant to pay holding over damage in a non landlord-tenant dispute.

4. The Honourable inferior court grossly erred and misdirected itself in fact and law in ordering appellant to pay holding over damages with effect from 1 July 2019 in the sum of ZW$10,000 per month when appellant had alleged facts which, if pleaded and accepted at the trial, were sufficient to establish a defence.”

The appellant sought a relief to have the application for summary judgment to be dismissed with costs and that the appeal be upheld with costs on attorney-client scale.

The two respondents, who are husband and wife, purchased certain piece of land situated in the District of Umtali called Stand 86 Murambi Gardens of Umtali Township lands measuring 3,450 square metres for RTGS$450,000 through a Deputy Sheriff's public auction.

The property was previously owned by the now appellant.

The two were confirmed purchasers of the property on 5 March 2019. They are now title holders under Deed of Transfer No.3520/19.

The respondents then issued summons against the appellant in the Magistrate Court seeking her eviction from the property, at the same time claiming holding over damages in the sum of $10,000 per month from 1 July 2019 until her vacation, and costs of suit.

The appellant entered appearance to defend. The respondents filed an application for summary judgement, and, on 3 January 2020, the court a quo granted the application.

On 6 January 2020, the appellant filed the present appeal.

The respondents proceeded to file a further application, before the trial court a quo, for leave to vacate pending appeal and they obtained that order on 17 February 2020.

On 19 February 2020, the appellant voluntarily vacated the property and the respondents are now in possession of the property.

On the date of hearing of this appeal, the legal practitioners of the parties indicated that there was need for oral arguments; the matter had to be decided on the basis of the papers filed of record.

However, what was not clear to this court was whether the appellant was still pursuing the appeal, given the fact that she had voluntarily moved out of the property and the outcome of the matter would become purely academic.

This is now our ruling on the appeal....,.

WHETHER OR NOT THE COURT A QUO ERRED AND MISDIRECTED ITSELF IN GRANTING SUMMARY JUDGMENT OVER AN ILLIQUID CLAIM OF HOLD OVER DAMGES

The appellant contended, that, the amount of holding over damages constitute an illiquid claim; if it is an illiquid claim, then, an application for summary judgement would not be applicable.

The appellant went on, further, to submit, that, the holding over damages were not based on a liquid document as there was no acknowledgement of debt, nor a lease agreement, nor any document to show that the amounts were liquidated.

According to the appellant, holding over damages could only have been determined after leading of oral evidence in a trial.

The appellant further added, that, the court a quo erroneously concluded, that, the appellant had not challenged the holding over damages.

To the contrary, the respondents submitted, that, holding over damages cannot be confined to a landlord–tenant relationship but to situations where the occupier holds onto the owner's property.

The respondents claim was based on the value of the rental the property would earn had it been on lease, and such a value is easily ascertainable.

In any case, the respondents explained how they had come up with the amount of holding over damages.

The respondents went on to cite Hever v Van Greuning 1979 (4) SA 952…, and cases cited therein, which is of the authority that an owner of immovable property who has never been in physical occupation or possession of his property is entitled to claim damages from a person who wrongfully and unlawfully occupied that property.

The respondents further cited the matter of Dube v Sengwayo HC110-91 which held that a claim for holding over damages, in respect of ejectment proceedings, was a claim for a liquidated demand because the damages were easily ascertainable.

The argument by the respondents finds favour with this court.

The analysis of the facts by the court a quo is sound in as far as whether holding over damages were a liquid claim. There is no legal basis to critique it nor to impugn it.

The decision in Dube v Sengwayo HC110-91 has not been set aside, and, given the reasoning in that judgment, I agree, too, that a rental per month put up by an owner of property can easily be determined or ascertained without difficulties, and, in this case, the respondents explicitly explained in their affidavits how the damages were computed.

I conclude, that, the holding over damages constitute a liquid claim and dismiss that ground of appeal by the appellant.

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

The further question raised by the appellant is whether restitutio in integrum applies solely to contractual damages and not unjust enrichment.

The answer to the question requires an appreciation of the differences between compensation for unjust enrichment, on the one hand, and contractual and delictual damages, on the other.

In The South African Law of Unjustified Enrichment, Juta, 2012 …, Du PLESSIS distinguishes unjustified enrichment, on the one hand, from contract and delict, on the other, in the following manner:

“Unjustified enrichment, like the law of contract and delict, is a source of obligations. But, unlike contract, unjustified enrichment creates obligations by force of law, and not by virtue of the actual or deemed consent of the parties; and, unlike delict, the purpose of imposing liability is not to balance out a loss with an award of damages, but to correct a gain by obliging the defendant to return or surrender enrichment to the plaintiff. Put more simply, unjustified enrichment gives rise to an obligation to provide restitution…, or to a right of retention or the power to remove the improvements.”

There is no magic attached to restitutio in integrum.

Regarding contractual damages, it is a term of art which denotes the unwinding or unravelling, physically or by payment of a monetary equivalent, of what has been done back to its original or pre-contractual position: see Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd 1999 (2) SA 719 (A)…,.; and Sackstein NO v Proudfoot SA (Pty) Ltd 2006 (6) 358 (SCA)…,.; and Mackay v Fey NO 2006 (3) SA 182 (SCA)…,.; Jacobs v United Building Society 1981 (4) SA 37…,.; and Du PLESSIS, The South African Law of Unjustified Enrichment, Juta, 2012…,.

It appears to me, that, unjust enrichment, which seeks to avoid manifest injustice, has the same effect of unravelling the benefit accrued to the enriched as does restitutio in integrum in contractual matters. The difference being, that, restitutio in integrum in unjust enrichment is invoked by operation of law while restitutio in integrum in contract is premised on actual or deemed consent of the contracting parties.

However, both have the same effect.

This view is in consonance with the sentiment expressed in Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173…, to the effect, that, the courts are willing to consider restitutio in integrum for unjust enrichment, if, in the pleadings, the claim for unjust enrichment is accompanied by a tender of what the claimant received: see also Du PLESSIS, The South African Law of Unjustified Enrichment, Juta, 2012 …,.

View Appeal
HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

On 22 April 2015, the plaintiff issued summons out of this court seeking the following order against the defendant:

“(1) An order confirming null and void the purported agreement of sale signed by the plaintiff and defendant on the 12th January 2010 in respect of Umguza 100 Acre Lot 5A for want of a subdivisions permit at the material time, and, in any event, and in the alternative, for defendant's breach of the terms and conditions of the agreement of sale.

(2) An order for the eviction of the defendant and all those claiming rights after him from Umguza 100 Acre Lot 5A currently occupied by the defendant on the basis of a null and void agreement of sale.

(3) Payment of the sum of US$18,000 being reasonable rental and unjust enrichment arising from defendant's occupation of Umguza 100 Acre Lot 5A from March 2010 to April 2015.

(4) An order for holdover damages at the rate of US$10 per day being reasonable rental for the portion of Umguza 100 Acre Lot 5A currently occupied by the defendant calculated from the 1st May 2015 to date of vacation, both days included.

(5) Costs of suit on a higher scale.”

Upon being served with the summons, and after indicating his intention to defend the action, the defendant, in his plea, flatly denied any form of liability and sought the dismissal of the plaintiff's claim with costs at a punitive scale.

In addition, the defendant counter claimed on the basis of unjust enrichment and sought an order against the defendant in the following terms:

“1. Payment in the sum of US$19,000 together with such payment as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.

2. A refund of all the money used by the defendant in drawing electricity to the plaintiff's homestead and applying for a subdivision permit.

3. Interest on all sums at the prescribed rate of 5% per annum with effect from the date of issue of summons to date of payment in full.

4. Costs of suit at an attorney and client's scale.”...,.

The improvements made by the defendant were supported by sworn valuation reports from three different real estate agents: see exhibits 9, 10 and 11….,.

The valuation reports given by the defendant, which were not challenged by the plaintiff, give an estimation of the cost of obtaining a piece of land of the same size as purchased by the defendant as the sum of $35,000.

In coming up with a figure which he deemed to be fair and reasonable compensation, the defendant simply averaged the three valuation reports and added the price of similar land to get $132,833=33.

The proposed approach seems to be alien to well known principles of computation of such compensation.

I propose to accept the lowest valuation of $90,000 plus $35,000 being the estimated costs of purchasing a similar piece of land which would give the amount of $125,000 as fair compensation for the improvements.

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

On 11 March 2015, the High Court granted part of the claim sought by Valentine Ziswa and his wife Margaret Ziswa (the cross appellants) against Graeme Shaun Chadwick and Landos (Pvt) Ltd (the cross respondents).

The court a quo dismissed the claims of the cross-appellants as against the second cross-respondent in their entirety and granted part of the claims as against the first cross respondent.

The cross appellants seek a reversal of the dismissal orders issued a quo.

The order issued by the court a quo reads as follows:

“In the result, it is ordered that:

1. The plaintiffs claims against the second defendant are hereby dismissed with costs.

2. The plaintiffs claim (a) against the first defendant succeeds only in the sum of $8,808 which the first defendant is directed to pay the plaintiffs.

3(a) The plaintiffs claim (e) partially succeeds to the extent of the 4km LTC Electric cable while the rest is hereby dismissed.

(b) The first defendant shall pay to the plaintiffs the sum of $84,000 being the replacement value of the LTC electric cable removed from the plaintiffs farm.

4. The first defendant shall pay the plaintiffs the sum of $780 being value of labour hired to clear tobacco stalks and related expenses.

5. The plaintiffs claims (b), (c), (d), (f), (g), (j) and (l) are hereby dismissed.

6. Absolution from the instance is granted in respect of plaintiffs claims (h) and (k).

7. The plaintiffs shall pay 20% of the first defendant's costs of suit.”

The first cross appellant is Valentine Ziswa (Ziswa) while the second cross-appellant is his wife, Margaret Ziswa. I will cumulatively refer to them in this judgment as the lessor.

The first cross-respondent is Graham Shaun Chadwick (Chadwick) and the second cross-respondent is Landos (Pvt) Ltd (the Company).

Graham Shaun Chadwick was a director in Landos (Pvt) Ltd, which he also used as his special purpose vehicle or agent to conduct his farming operations on Ziswa Farm (the farm) and on three other surrounding farms, namely, Gijima, Kelvin, and Landos.

THE BACKGROUND

On 20 March 2015, Graham Shaun Chadwick filed a defective Notice of Appeal against the cross appellants, which did not indicate the part of the judgment he sought to impugn.

He, thereafter, filed a contested chamber application for condonation and extension of time within which to appeal on 11 January 2018, which was dismissed with costs on 21 March 2018.

The effective disposal of the main appeal in this manner left the cross appeal pending.

FACTS

On or before 1 September 2008, Valentine Ziswa and Graham Shaun Chadwick entered into a verbal agreement for the lease of the farm and the inventoried equipment. The description, quantities, and state of the leased equipment was recorded in the comprehensive inventory the parties drew in October 2008.

The tobacco season in Zimbabwe generally runs from September to August and sales generally take place between March and June.

Graham Shaun Chadwick was on the farm during the 2008-2009, 2009-2010, 2010-2011, and 2011-2012 seasons (hereinafter called the first, second, third, and fourth seasons, respectively).

On 9 January 2009, Valentine Ziswa and Graham Shaun Chadwick signed a 10-year lease agreement.

On the same date, Valentine Ziswa and his wife (the First Partner) executed a second “Joint Venture Agreement” (JVA) with Graham Shaun Chadwick (Second Partner) for the “long term development” of the farm.

The two agreements were backdated to 1 September 2008.

Graham Shaun Chadwick not only leased the farm and the inventoried property, but, in addition, undertook to erect permanent structures (in each season) of an equivalent value to the seasonal rental payable.

In terms of clause 1 and clause 2, Graham Shaun Chadwick leased “the land, together with all buildings and other permanent improvements and certain immovables” for the ten year period from 1 September 2008 to 31 August 2018 for the purpose of growing “30ha of tobacco, 40ha of maize, 20ha of wheat and any other crop agreed between the parties.”

In terms of clause 3, the rental payable would be “6 per cent on the US$ of the gross turnover of the crops produced on the said land inclusive of bonuses and hailstorm insurances.”

In respect of tobacco, the rent was to be paid into the lessor's FCA by stop order raised at the auction floor, and cash payments were to be made in respect of other crops.

In addition to the rental, Graham Shaun Chadwick would, in terms of clause 4(d), be responsible for the repairs and maintenance of tractors and the inventoried equipment leased to him with effect from 1 September 2008.

Lastly, clause 9 stipulated that:

“This agreement constitutes the entire agreement between the parties, and no representation or undertakings given by one of them to the other of them prior to the execution hereof, and no variation of the conditions hereof, shall have any force or effect unless recorded in writing and executed by the parties hereof.” (The underlining covers the handwritten portions of the otherwise typeset agreement).

The Joint Venture Agreement (JVA) substantially duplicates the lease agreement. Clause 3 thereof reads as follows:

“3. The rent payable by the lessee to the lessor shall be 6 per cent per centum of the gross turnover in respect of the crops produced on the said land, and payment of such rent/lease shall be secured by means of STOP ORDER given by the lessee in favour of the Company against proceeds of tobacco sold through TOBACCO SALES FLOOR. Such PAYMENT shall be executed and registered as soon (sic) may be after the signing of this lease. 31 MARCH, 3 APRIL, 6 END OF JULY. MAIZE 1.5 TON MONTHLY.” (The underlined words and figures are handwritten)

It was common cause that the two agreements are complementary and separate and distinct. The requirements of the Joint Venture Agreement (JVA) were additional to the rental payable.

It was also common cause, that, Graham Shaun Chadwick was an active councillor for the Zimbabwe Tobacco Association (ZTA) for six (6) years and had been its Vice-President for another two (2) years.

He introduced the Zimbabwe Tobacco Association (ZTA) proforma lease and Joint Venture (JV) agreements, and, together with Valentine Ziswa, supplemented and annotated the terms and conditions therein by hand.

Graham Shaun Chadwick grew maize during the first season only and abandoned it in subsequent seasons in preference to the more lucrative tobacco crop. He never grew wheat on the farm.

Graham Shaun Chadwick did not abide by the direct deduction method prescribed in the agreements. He did not disclose to the lessor his prior preferential stop order obligations to the Zimbabwe Leaf Tobacco Company (Pvt) Ltd.

By 10 May 2010, Graham Shaun Chadwick had repaired a weir, put in a pump and generator, laid underground irrigation pipes, erected a centre pivot, paid for the labour for the reconstruction of a burnt down tobacco barn “maintained” all 14 barns by putting in place the necessary appurtenances for curing tobacco, repaired furnaces and sheds, and, at a cost of US$2,700 constructed 11 two roomed staff houses.

By letter dated 22 February 2011, Graham Shaun Chadwick offered to increase lease rental to 8%.

The offer was not accepted.

Instead, the lessor made the counter offer proposed in the detailed draft agreement, which the lessor signed on 13 March 2011.

The counter-offer was, in turn, rejected by Graham Shaun Chadwick.

Between 10 January 2012 and 18 May 2012, the parties failed to amicably resolve the lessor's demands for arrear rentals, maintenance of the leased equipment, and the repatriation of leased property that Graham Shaun Chadwick allegedly took to other farms.

In frustration at the impasse, the lessor sought to exercise a lien over the tobacco produce that was on the farm.

They were, by consent, interdicted by Graham Shaun Chadwick and Landos (Pvt) Ltd, on 24 May 2012 in case No. HC5477/12.

On 10 June 2012, the Ziswas instigated the arrest of Graham Shaun Chadwick for theft of some of the 2008 inventoried property. The complete police docket, compiled by Sergeant N'andu (IO), was produced by consent as exhibit 5.

Sergeant N'andu (the IO) first attended at the farm on 12 June 2012. On 19 June 2012, he conducted a verification or “exit” inventory with Valentine Ziswa and a proxy of Graham Shaun Chadwick, at the direction of the Area Public Prosecutor for Rusape (APP).

By letter dated 2 July 2012, Graham Shaun Chadwick cancelled the lease agreement and immediately vacated the farm.

On 5 September 2012, the Area Public Prosecutor for Rusape declined to prosecute, adjudging the criminal complaint to be a civil dispute.

On 26 September 2012, the lessor issued summons against the defendants claiming an aggregate sum of US$456,699 under 13 heads. These comprised of the following claims:

(a) Arrear rentals of US$64,160 for the fourth farming season;

(b) A refund of rates and levies of US$1,980 paid to the Makoni Rural District Council for the fourth farming season;

(c) The lessor's share of the hailstorm insurance proceeds of US$5,500 in respect of the second farming season;

(d) The outstanding developments for the first three farming seasons, represented by the value of the centre pivot that was removed from the farm, in the sum of US$67,507;

(e) Other enumerated property valued at US$187,707 that was also removed from the farm;

(f) The estimated damages to recovered property of US$15,905;

(g) US$7,600 for the damage to the fence and gates on the farm;

(h) US$15,008 for the repairs to the damaged tobacco barns and flue pipes;

(i) US$780 for removing the fourth season tobacco stalks;

(j) US$26,313 for vandalized overhead water storage tanks, pipes, workers houses, electrical underground cables, dams, pump unit, boreholes, and transformer;

(k) US$15,000 for maize deliveries contractually due to the lessor during the second to fourth farming seasons;

(l) US$4,240 for the tobacco seedlings grown on the farm and sold to other farmers;

(m) US$45,000 damages for loss of income in respect of the 2012/2013 tobacco cropping season caused by the premature and abrupt termination of the agreements.

THE PROCEEDINGS A QUO

The lessor made the following contentions:

The two agreements had separate and distinct obligations. Landos (Pvt) Ltd had a direct and substantial interest in the two agreements, and was, together with Graham Shaun Chadwick, therefore liable for the various contractual breaches that gave rise to the 13 claims.

The lessor's documentary and oral evidence established both liability and quantum in respect of claim (a), (d), (e), (f), (g), (h), (j), (k) and (l) at the higher rate of 8 per cent and not at the 6 per cent in the two agreements.

The lessor abandoned claim (m) and conceded that Graham Shaun Chadwick and Landos (Pvt) Ltd be absolved from the instance in respect of claims (b), (c) and (i) on the ground that the lessor had failed to established the due amounts.

Graham Shaun Chadwick conceded that the annotations formed part of the terms agreed by the parties on 9 January 2009.

Counsel for Graham Shaun Chadwick argued, that, the lessor failed to establish both liability and quantum.

He submitted, on the authority of Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (S), that, the oral variation of the rental rate from 6 per cent to 8 per cent in violation of the non-variation clause (Clause 9 of both agreements) of the agreements was inefficacious and invalid.

He also relied on the twin principles of privity and sanctity of contracts enunciated in CHRISTIE: The Law of Contract in South Africa, 6th ed, 2010 Lexis Nexis…, to call for the dismissal of all the claims sought against Landos (Pvt) Ltd.

Counsel, however, conceded that Graham Shaun Chadwick was liable for unpaid rental of US$8,808 for the fourth season and US$36,000 for the LTC line [falling under claim (e)] and not the respective US$64,160 and US$84,000 sought by the lessor.

He further contended, that, as the lessor had failed to establish liability or where liability had been established, the quantum thereof in respect of claims (b), (c), (d), the remainder of (e), (f), (g), (h) and (j), the claims fell to be dismissed.

Counsel requested the court a quo to discard the evidence of the valuator for the reason that it was unconventional and unprofessional.

He argued, that, the valuation was in breach of the 'objective' and 'appreciable help' standards expected of expert evidence that are propounded in Stock v Stock 1981 (3) SA 1280 (A)…,; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)…,; and Menday v Protea Assurance Co. Ltd 1976 (1) SA 565 (E)…, and articulated in SCHWIKKARD & Van der MERWE's Principles of Evidence, Juta 2009…,.

He, therefore, prayed for the dismissal of claims (d) (e), (f), (g), (h) and (j), which rested on the valuator's computations.

Counsel further contended, that, the claims ought to be dismissed for the further reason that the lessor had not amended the quantum to reflect the new amounts touted by the valuator some of which were higher than the individual breakdowns set out in annexures 2 and 3 to the summons.

THE FINDINGS A QUO

The court a quo made the following findings:

The only effectual agreements were the lease and the Joint Venture agreements dated 9 January 2009 and not the draft agreement of 13 March 2011.

The operational rental rate was 6 per cent and not 8 per cent. This was because the offer of 22 February 2011 had not been accepted nor had the non-variation clause been invoked.

Valentine Ziswa was an inconsistent, unreliable, untruthful, and greedy witness.

He prevaricated on whether the tenure of the agreements was 5 years, 8 years, or 10 years and whether the rental rate was 6 per cent, 8 per cent, or 10 per cent.

He was greedy because he unjustifiably claimed for municipal imposts, maize deliveries, seedlings, and hailstorm insurance proceeds, which were all not covered by the two agreements. He also demanded for the value of the centre pivot, which he had categorically rejected as constituting a permanent structure.

The court a quo also excoriated the valuator for flaunting his professional qualifications and experience at the expense of conventional valuation principles. It, therefore, discarded his depreciated replacement cost computations.

Graham Shaun Chadwick, whose demeanour was highly extolled, was found to be a truthful, good, and reliable witness.

His status as an accomplished tobacco farmer with 20 years experience, and who exuded confidence and conceded where he was liable, endeared himself to the court a quo at the expense of Valentine Ziswa whose penchant for renting out instead of farming on his own account was deplored by the court.

Notwithstanding the contrary general findings on credibility of Valentine Ziswa and the valuator, the court a quo believed Valentine Ziswa's oral testimony on the US$780 claim on tobacco de-stalking and the chartered accountant's valuation of the LTC line. It, however, dismissed the rest of their evidence on the valuation of all the other claims. It further held that seedlings were not a crop as they could not be sold at the auction floors.

The court a quo dismissed the claims against Landos (Pvt) Ltd on the twin basis of lack of privity of contract and sanctity of contracts.

It held, that, these cardinal legal principles could not be negated by Graham Shaun Chadwick's directorship of the company, his use of the company's letterhead in correspondence with the lessor and bank account to effect payment of his lease obligations.

It issued the order that I adverted to at the commencement of this judgment.

Aggrieved by the order granted a quo, the lessor appealed to this Court on the following grounds:

“1. The court a quo erred in not finding that the reduction of part of the agreement between the parties to writing and the existence of the non-variation clause notwithstanding, on the entirety of the evidence before the court, the agreement between the parties consisted in part of the written portion and in part of the oral agreement sworn to by the cross appellants.

2. The court a quo erred, for the stronger reason, in not finding that the second cross respondent was privy to the whole of the agreement between the parties and in dismissing the claim against it.

3. The court a quo erred in its treatment of the evidence and assessment of the cross appellants claim with the result, that, the court misdirected itself in its gratuitous conclusions on the first cross-appellant's demeanour and motives culminating in the rejection of the cross-appellants claims on this flawed basis.

4. The court a quo erred in not finding that the rent for the use of the cross-appellants farm varied from 6 per cent to 8 per cent of the gross annual turnover realised on the farm.

5. The court a quo erred, in any event, in accepting the appellant's bare testimony that the sum of US$21,000 paid to the cross appellants was towards the rental for the 2011-12 season and in deducting the same from the rental due and owing to the cross appellants.

6. The court a quo erred in its treatment of the evidence in concluding, that, the claim for the tonnage of maize was not within the parameters of the agreement of the parties and in rejecting the cross-appellants testimony regarding the quantum thereof.

7. The court a quo erred in holding, that, the claims for the centre pivot and generator did not fall within the parameters of the developmental agreement.

8. The court a quo erred in holding that the seedlings produced on the cross appellants farm, but sold elsewhere, were not produce for the purposes of the parties agreement, and in rejecting the cross-appellants quantification thereof.

9. The court a quo erred in finding, as it did, that there was no evidence to substantiate the cross appellants claim (e) (property removed and not returned) and claim (g) (removed and/or damaged fences and gates) and in finding the property could have been unusable.

ALTERNATIVELY

The court a quo erred, in any event, in dismissing the said claims as opposed to granting absolution from the instance.

10. The court a quo erred in rejecting the evidence of Pange purely on the basis that he had used one as opposed to three quotations which had been sourced by the cross-appellants, and had applied the general accounting depreciation formulae without a physical examination of the property in question.

11. The court a quo erred in not awarding the claim for the irrigation pump, which the appellant conceded in his evidence and offered to compensate for the same.

12. The court a quo erred in accepting as true the appellant's testimony based solely on the fact that he managed to impress the judge in terms of his demeanour.”

The cross-appellants sought the success of the cross appeal with costs, the amendment of the judgment a quo by granting, jointly and severally, the one paying the other to be absolved:

(i) Arrear rentals of $67,502=40 for the 2011-12 season (being 8 per cent of gross realization of US$843,780 from sale of 205,800kgs at US$4=10 per kg);

(ii) Alternatively, judgment in the sum of US$50,626=80 being 6 per cent of the above gross realisation;

(iii) Judgment in respect of claims (d), (f), (j) and (i);

(iv) Judgment for the reduced sum of US$364,729 as particularised in exhibit 3; and

(v) Costs of suit against the cross respondents.

THE ISSUES

The issues that arise from the grounds of appeal are the following:

1. Whether the variation clause was waived by the parties to the lease agreement.

2. Whether the second cross-respondent was liable to the lessor's claims.

(a) Rentals for the fourth season (a portion of claim (a)).

(b) The value of the developments in lieu of the Centre Pivot (claim (d)).

(c) Damages for missing equipment (including the irrigation diesel pump whose liability was conceded) (claim (e)) and for damaged property and equipment on the farm (claim (f)).

(d) Repairs to tobacco barns (claim (h)).

(e) Vandalized overhead water tanks, reservoirs, boreholes, and staff houses and their connecting pump unit, cables, electrics, and pipes claim (j).

(f) Maize deliveries due for the second to fourth seasons (claim (k)).

(g) Value of tobacco seedlings (claim (l)).

3. Whether or not the court a quo properly exercised its discretion in respect of costs.

THE ARGUMENTS BEFORE THIS COURT

At the onset of his submissions before this Court, counsel for the lessor abandoned claims (b), (c) and (g).

He persisted with the appeal against the dismissal of the entire claim against the company, the part dismissed in respect of claims (a) and (e), and the dismissals against claims (d), (f) (h), (j), (k) and (l).

Counsel for the lessor contended, that, the dismissal of the lessor's claims against Landos (Pvt) Ltd was erroneous.

He argued, that, the resolution passed by Landos (Pvt) Ltd, on 18 May 2012, authorising Graham Shaun Chadwick to “represent the company in any legal matter against Mr and Mrs Ziswa” before the institution of action proceedings on 26 September 2012, showed that it had a direct and substantial interest in the two agreements.

He further argued, that, the main credibility findings in favour of Graham Shaun Chadwick and against Valentine Ziswa, upon which the court a quo premised its dismissal of the lessor's claims were, on the totality of the adduced evidence, irrational.

He argued, that, notwithstanding the embodiment of the non-variation clause in the lease agreement, the lessor had, contrary to the finding a quo, established that Graham Shaun Chadwick had, by conduct, waived the lease rental rate from 6 per cent to 8 per cent on the second and subsequent seasons.

He further argued, that, the valuation testimony of the chartered accountant had proved the damages suffered by the lessor as at the date Graham Shaun Chadwick cancelled the agreements and vacated the farm.

Lastly, he contended that the costs order granted a quo constituted a patent failure in the exercise of discretion warranting interference by this Court.

Per contra, counsel for Graham Shaun Chadwick and Landos (Pvt) Ltd vehemently supported the impugned findings and conclusions of the court a quo.

He argued, that, the claims against Landos (Pvt) Ltd were rightly dismissed because it was not privy to the lease agreements.

He strongly contended, that, having acted as an agent, it could not be sued either separately or together with its principal.

He further contended, that, the non-variation clause precluded the lessor from relying on any variation derived from an oral agreement or on the offer to increase the rate to 8 per cent which they did not accept.

He submitted, that, an oral agreement could not waive a non-variation clause.

He further contended, that, the court a quo had not relied on the demeanour of the witnesses only but also on the inconsistencies that characterized the evidence of the lessor's star witness, Valentine Ziswa.

Lastly, he contended that the valuator's testimony was rightly discarded for being both unconventional and unprofessional.

Counsel impugned his competence on two bases:

(i) The first was that he had relied on the quotations availed to him by Valentine Ziswa without conducting a physical inspection of the equipment.

(ii) The second was that he had further relied on internet sites, that he failed to disclose, in ascertaining the life span of some of the equipment listed in exhibit 3.

ANALYSIS OF THE LAW AND THE FACTS

DAMAGES FOR MISSING AND DAMAGED PROPERTY AND EQUIPMENT

In the judgment a quo, at p15, entry 2 dated 12 June 2012 of Sergeant N'andu's running diary in the docket is reproduced. It reads:

“This date I went out to attend the scene of crime at Ziswa farm. Observations made at the scene were that farm equipment were (sic) not taken away as whole but some crucial parts were being removed from each and every equipment e.g. on Boom Sprayer only nozzles and pump were removed and the other part was left behind. Almost all farm equipment and electrical gadgets were left like that. It was pure 'vandalism'. Taking it from the accused's version that he was 'taking' out his properties, leaves a lot to be desired considering the way he was removing the parts from equipment.”

On 15 June 2012, the Public Prosecutor directed Sergeant N'andu to compare the entry and exit inventories and physically ascertain whether any property was missing.

On 19 June 2012, Sergeant N'andu made the following 12th entry in the running diary:

“Both the accused and the complainant have the inventory carrying the same information of farm implements which both of them have signed. I physically checked all the farm implements together with complainant and Richard Banda, security officer who was representing the accused. We noted that some implements were available but were in the condition which did not satisfy the complainant. Some farm implements were missing. The accused said that he was in custody of most of the missing implements since he had access to the farm implements when he was running Ziswa farm after he had entered on (sic) a lease agreement with the complainant for the past four years until now.

While I was still on the farm, the accused brought back some of the farm implements which was (sic) in his custody. The complainant is now regarding the returned farm implements as recovered property.

The accused is willing to repair all the farm implements which are not working, like the tobacco barns, boreholes, electric pumps, and other implements. Complainant is not willing (sic) his implements to be repaired before the case is heard before the court.

The final handover/takeover was then done and signed by both complainant and accused who was represented by his security officer, namely, Richard Banda.”

The latter entry showed that, whole items of equipment rather than just some parts on some of the equipment, had been removed by Graham Shaun Chadwick from the farm.

This was in consonance with the concession to similar effect of Graham Shaun Chadwick under cross examination on pp534-537 of the record of proceedings. I reproduce excerpts of that cross-examination below:

“Q. Line 4 of your warned and cautioned statement says, all the items on the inventory of stolen property which were at Ziswa Farm when I moved onto the farm can be accounted for as they would be moved from Ziswa Farm to Kelvin Farm where our work is, do you notice that?

A. Yes.

Q. So, faced with an inventory of the property and the alleged stolen property, you say it can be accounted for, that is your reply, you notice that?

A. Yes.

Q. After recording of the warned and cautioned statement, did you return any property to Ziswa Farm?

A. Yes, I think we did, a lot.

(p536)

Q. So, even whilst the police were still investigating, you were bringing back some of the equipment?

A. Correct.

Q. And, you accept that at the verification process there would have been a list of the missing equipment, correct?

A. As far as I am aware, all of the equipment was returned, otherwise I would have been arrested, otherwise it would have been stolen property; so, as far as I am aware, every single item was returned and Assistant Inspector N'andu signed for it. But, I would like Mr Banda to witness that because he was there, I wasn't.

(p537)

Q. Okay, so, let us sum up your evidence on this aspect; you are happy for us to say that you accept that some equipment was removed, some was returned, but, you don't know what was returned or the state in which it was when it was returned?

A. According to Banda.

Q. You would rather leave Mr Banda, you do not wish to talk about it, except to accept that it was removed and returned in some state?

A. Yes”

In the summons, the lessor sought compensation for missing property in claim (e) in the sum of US$187,707 and badly damaged property in claim (f) in the sum of US$15,905.

In oral testimony, he deferred to the depreciated replacement cost provided by the valuator he assigned to value the property.

The valuator, a highly qualified and experienced chartered accountant was undoubtedly qualified for the job. It was common cause that he did not physically inspect the equipment. He relied on the information, as to age and state of the missing and damaged property, availed to him by Valentine Ziswa.

He supplemented deficient information with online research.

He was shown exhibit 2, the colour photographs of some of the damaged property. He received 34 quotations encompassing each item, which were sourced between 8 October 2012 and 30 October 2015. He prepared an excel spread sheet cataloguing the equipment on the entry inventory and denoting the description and quantities of each item, cost per unit, gross replacement cost, rate of depreciation, the depreciation, the depreciated replacement cost, and the supplier of the cost per unit quotation.

He applied IAS 16 to compute the depreciated replacement cost of each item.

The categories comprised 'tractors and related equipment' 'building improvements' 'building, irrigation, curing, and water pumping equipment' and 'tools'.

The court a quo said of his evidence:

“Pange may be an accomplished professional, but, I have serious difficulties with his evidence. He appears to have been an armchair expert, if not a disinterested witness, content with only flaunting his professional qualifications and expecting the court to accept his testimony hook, line, and sinker without justification. He relied entirely on information fed to him by an unreliable witness, Ziswa, who has been shown to have a penchant for inconsistencies and wanting to exaggerate claims…,. From where I am standing, the entire valuation process, except perhaps for the formula gleaned from international standards, was fictitious and extremely unreliable.”

In my view, these strong words blinded the court from appreciating what the task of the valuator was.

It is clear that the could not, even if he was so inclined, physically assess the property listed in claim (e) for the simple reason that it was missing and was, therefore not to hand.

While he could have inspected the vandalized property on site at the farm, some of that property was captured in graphic colour photographs which were produced a quo as exhibit 2.

Lastly, his real task was to apply the depreciating rate and his general valuation expertise to the quotations sourced by the lessor. He indicated to the court a quo how he went about his task.

The duty of an expert is to provide appreciable help to the court in arriving at an estimated value of the damages suffered by a party in the position of the present lessor.

It is not possible to provide an exact value to such items.

The only way he could help the court was to dispassionately apply his valuation knowledge to the task at hand. He discharged that task to the best of his ability.

Indeed, even the sceptical Graham Shaun Chadwick conceded, at p549 of the record of proceedings, that, the valuator used an acceptable accounting method, although he was not an expert in farming or agricultural equipment.

The nature of the evidence required in respect to compensatory damages was set out by this Court in the case of Wynina (Pvt) Ltd v MBCA Bank SC27-14…, thus:

“It is an accepted principle of our law, that, some types of damage are difficult to estimate, and, the fact that they cannot be assessed with certainty or precision will not relieve the wrongdoer of the necessity of paying damages for his breach of duty. The principle is not a novel one and decided authorities have gone so far as to state, that, a court doing the best it can with insufficient material may have to form conclusions on matters on which there is no evidence and to make allowance for contingencies - even to the extent of making a pure guess: see Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964.”

To similar effect was GREENBERG J in Arendse v Maher 1936 TPD 162 where he pertinently observed that:

“It remains, therefore, for the Court, with the very scanty material at hand, to try and assess the damage. We are asked to make bricks without straw, and if the result is inadequate, then, it is a disadvantage which the person who should have put proper material before the Court should suffer. The means that I have at hand are extremely unsatisfactory, but, I propose to rely to some extent on the figures appearing from the decision in Chisholm's case and to be guided by those figures.”

It seems to me, that, had the court a quo appreciated that in terms of clause 4(d) of the two agreements Graham Shaun Chadwick was “responsible for the payment of the cost of the repair and maintenance of tractors and equipment leased with effect from 1 September 2008” it would not have overly concerned itself with the state and condition of the items at his point of entry.

The duty to keep the leased property in a good state of repair was his.

The lessor established that he handed usable equipment to him. Graham Shaun Chadwick used the property, and, instead of repairing it, cannibalized some of it and left the other in an un-usable state at exit.

Once the lessor had provided the best evidence of the damages he suffered at the hands of Graham Shaun Chadwick, he cast the evidentiary burden on Chadwick to show either that no damages were suffered or that they were incurred in a lesser amount.

It was not enough for Graham Shaun Chadwick to merely fold his arms and criticize the best evidence provided by the lessor without producing alternative evidence.

I am satisfied, that, the court a quo therefore misdirected itself in assessing the probative value of the valuator's testimony.

The assessment of the court a quo was inconsistent with the totality of the facts. The decision thereon was reached contrary to the evidence at hand. It stands to be set aside.

The ninth ground of appeal, in so far as it does not relate to claim (g) [which was abandoned on appeal], and the tenth ground are accordingly upheld.

In respect of claim (e), the lessor claimed US$187,707 as set out in Annexure 2 to the declaration.

There are 40 sets of missing items. There are no quotations raised for two (2) sets. (No.5 and 22). The amounts claimed in the summons, in most of the remaining sets, were equivalent to the gross replacement values that appear in the chartered accountant's schedule (exhibit 3). There are other items in which the amounts in annexure 2 were either higher or lower than the depreciated replacement value in exhibit 3.

I have, in each of these instances, adopted the lower amount for two reasons:

(i) The first being that the lessor could not be awarded the higher amount without amending their summons.

(ii) The second being that the lower amount was the one the lessor proved.

The total depreciated replacement cost for the proven 38 sets of items, less the US$84,000 granted a quo for the LTC electric line, would be US$68,257.

The lessor is therefore entitled to this additional amount in respect of claim (e).

Claim (f) relates to the damages claimed for 23 sets of recovered property, which is listed in annexure 3 to the declaration in the sum of US$15,905. The depreciated replacement cost established in evidence is in the sum of US$13,831.

The lessor is entitled to this amount under claim (f).

The established depreciation replacement cost for barn repairs in schedule 3 is US$41,000 for claim (h). The claim in the summons is US$15,008.

In view of the plaintiff's failure to amend their summons to reflect the higher amount, the amount due to them is the lower of the two amounts. They are entitled to the amount claimed in the summons of US$15,008.

It was therefore remiss of the court a quo to have granted absolution from the instance.

Claim (j), in the sum of US$26,313 related to vandalized overhead water storage tanks, pipes, workers houses, underground cables, water reservoirs, cast iron pipes, pump unit, electrics at the borehole and on the transformer.

Liability for this claim was established by Valentine Ziswa and Sergeant N'andu's oral evidence and reinforced by the photographs (exhibit 2).

The bare denials of Graham Shaun Chadwick were insufficient to offset this overwhelming testimony.

Graham Shaun Chadwick admitted, that, the cables were dug out from the barns for security reasons and restored at the next curing season.

The only issue is whether the quantum claimed was established.

The lessor did not prove the depreciated cost of effecting repairs to these vandalized items. The proper relief a quo should have been an absolution from the instance and not a dismissal of the claim.

This will be reflected in the amended order of the court a quo that will ensue.

IRRIGATION PUMP

The missing pump house pump, which Graham Shaun Chadwick took responsibility for damaging, forms part of the lessor's claim (e). It is accounted for in this judgment under that head.

In the premises, the eleventh ground of appeal is upheld.

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

On 24 July 2013, the High Court granted judgment in favour of the respondent herein. Consequent thereto, the court ordered that the appellant vacate premises known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare and pay the sum of USD22,730=99 being arrear rentals, and holding over damages in the sum of USD5,000 together with operating costs from 1 November 2011 to the date of eviction.

The court ordered the appellant to pay interest on the abovestated sums at a rate that is 5 percent above the lending rate of commercial banks, and costs of suit at the ordinary rate.

The appellant was aggrieved and noted an appeal against the whole judgment.

The respondent was equally unhappy with part of the judgment and noted a cross-appeal against the finding by the court that it was required to give the appellant fifteen (15) days notice of cancellation of the lease in the event of failure by the appellant to pay rent on due date.

In addition, the respondent particularly appealed against the finding by the court, that, the letter dated 26 September 2011 by the respondent did not constitute a cancellation of the agreement.

FACTUAL BACKGROUND

The appellant and the respondent are private limited companies duly registered as such under the laws of Zimbabwe and carrying on business as such within the country.

On or about 30 March 2010, the respondent and the appellant entered into a written agreement of lease in terms of which the former leased to the latter commercial property known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare.

The agreement was initially for a period of six months and was terminable on 31 August 2010.

Although the lease agreement suggests that it commenced on 30 March 2010, evidence from the appellant during the trial reveals that it first occupied the premises sometime in 2005.

This fact is, however, of no moment as it was never disputed that there was a subsisting lease between the parties.

It is worth noting, that, while there is no specific clause providing for the renewal of the lease, clauses in the agreement suggest that it was to endure beyond the stated period of six months.

Indeed, when the dispute erupted, the appellant had been in occupation of the premises for over twelve months.

After the lease period expired, the parties continued with the lease on the same terms and conditions.

This is because the accepted sum due as rental, at that stage, was USD5,000 - an amount far in excess of the USD1,000 stated in the original written lease.

Moreover, from the manner in which the proceedings in the court below were conducted, it can be inferred that the lease was still subsisting.

The terms and conditions of the lease agreement are the bone of contention between the two.

The terms of the agreement that are pertinent to the dispute are to be found in clauses 3 and 12 of the agreement and relate to the payment of rentals and operating costs.

The parties agreed that the appellant would pay monthly rentals within the first seven days of each month, together with operating costs at agreed rates.

The respondent alleged, that, the appellant was in breach of a material term of the agreement by failing or neglecting to pay monthly rentals and operating costs within the time stipulated in the lease agreement.

Due to the breach, the appellant allegedly incurred arrear rentals in the sum of US$22,730=99.

As a consequence of the breach, the respondent averred that it had cancelled the lease agreement, demanded vacant possession of the leased premises, and payment of the arrear rentals and operating costs.

The respondent posits, that, it did so by letter dated 26 September 2011 from its legal practitioners to the appellant cancelling the said agreement.

On 12 October 2011, the respondent issued summons against the appellant in which it claimed the following relief:

“(a) An order for the eviction of the defendant together with its tenants, assignees, invitees, and all other persons claiming occupation through it from the plaintiff's premises known as Shops 1 and 2 Benhay Art House, located at 120 Chinhoyi Street, Harare.

(b) Payment of the sum of USD22,730=99 in respect of arrear rentals.

(c) Payment of holding over damages at a monthly rate of USD5,000 together with operating costs from 1 November 2011 to the date of eviction.

(d) Payment of interest on the sums of money claimed herein at a rate which is 5 percent above the commercial bank minimum lending rate per month, or part thereof, calculated from due date to date of payment in full.

(e) Payment of costs at the scale of legal practitioner and client.”

It is common cause that the parties thereafter attempted to enter into without prejudice negotiations.

A Deed of Settlement was drafted which required the appellant to acknowledge its indebtedness in the sum of US$16,980 and to discharge its indebtedness at the rate of US$2,500 a month with effect from 1 November 2011.

Further, the appellant was to continue to pay monthly rentals of US$5,000 in accordance with the terms of the lease agreement.

The respondent's legal practitioners signed the draft Deed of Settlement. The appellant's legal practitioners did not.

As it had threatened, the respondent proceeded with the suit culminating in the holding of a pre-trial conference before a judge in chambers.

At the pretrial conference, the matter was referred to trial on the following issues:

1.1 Whether or not the respondent properly cancelled the lease agreement in respect of Shops 1 and 2 Benhay Art House, No.120 Chinhoyi Street, Harare.

1.2 Whether or not any agreement for the out of court settlement of this matter was concluded between the parties.

1.3 If so, what were the terms of the agreement?

2.1 Whether or not the respondent was entitled to an eviction order.

For the purposes of the trial, the court a quo formulated the issues that were before it for determination as:

1. Whether the respondent gave adequate notice of intention to cancel the lease agreement before the agreement was cancelled.

2. Whether there was a valid cancellation of the lease agreement between the parties.

3. Whether the parties entered into a separate agreement relating to the outstanding rent.

The court a quo found in favour of the respondent and issued the order referred to above.

In arriving at its decision, the court a quo noted that clause 3.2 of the lease agreement stipulated that rent was to be paid monthly in advance, at the latest by the seventh day of the month.

It also found, that, clause 12 stipulated that if rent was not paid as agreed, or where the tenant breached any other condition of the agreement and remained in default for a period of fifteen days after being given notice in writing by the landlord, then, the landlord could cancel the lease forthwith and retake possession of the premises without prejudice to any claim for damages.

The court also found, that, in the light of these clauses, the letter dated 26 September 2011 did not effectively cancel the lease agreement.

The court noted, that, instead, the letter gave the appellant three days to rectify the breach and that this period was contrary to the agreement which allowed for a period of fifteen days to remedy a breach.

The letter in question was delivered to the appellant on 27 September 2011. The court, therefore, found that, that is when the fifteen days contemplated by clause 12 began to run.

Consequently, the court concluded, that, the appellant had up to 12 October 2011 to remedy the breach.

Accordingly, the court a quo found, that, by 12 October 2011, when the respondent issued summons, it did so in compliance with the lease agreement as the fifteen days from the date the appellant received the letter had elapsed.

The court further found that the letter of 26 September 2011, by which the respondent said it cancelled the lease agreement, had the effect of placing the appellant in mora.

Thereafter, the court reasoned, the appellant had fifteen days from the date of being placed in mora to remedy the breach, failing which the respondent had the right to cancel the agreement.

The court further determined, that, there was no compromise agreement as, by the appellant's own admission, it failed to sign the Deed of Settlement.

The court a quo, therefore, granted the respondent's claim in its entirety.

The appellant has noted the present appeal on the following grounds:

“1. The court a quo erred in granting an order for the monetary claim as made out in the summons when it was apparent from the evidence that this money had been cleared.

2. The court a quo erred by extending the time of notice after it had made a finding that there was insufficient notice given.

3. The court a quo erred in finding, as it did, that notice, though insufficient, was given, when, in actual fact, the respondent cancelled the agreement of lease without giving the notice required in terms of the agreement.

4. The court a quo misdirected itself as it made a finding that there was no compromise reached by the parties because the Deed of Settlement was not signed by the appellant, yet, the Deed was for proof purposes only as the agreement had already been reached.

5. The court a quo erred, generally, by ordering eviction after the compromise and when the arrears had been cleared.

6. The court a quo erred by making a finding that the appellant's witness was not credible when he gave straight forward evidence.”

ISSUES FOR DETERMINATION

In its heads of argument, the respondent has conceded that its cross appeal was ill-founded. As a consequence, it was not proceeding to argue the same.

The concession is proper.

The cross-appeal sought to challenge findings of fact made by the court a quo without a corresponding prayer to alter the judgment itself.

The concession leaves only the main appeal for determination.

In my view, the remaining issues for determination, therefore, are the following:

(i) Whether the lease was properly cancelled;

(ii) Whether the court a quo should have ordered the eviction of the appellant from the premises;

(iii) Whether the parties reached a compromise; and

(iv) Whether the court a quo was correct to grant the monetary claim in its entirety....,.

WHETHER THE COURT WAS CORRECT IN ISSUING THE MONETARY AWARD

I turn to consider the issue of the monetary award.

It is not in dispute, that, there were no arrear rentals outstanding by the date of trial. Therefore, the award by the court a quo of the monetary claim for arrear rentals was erroneous and must be set aside.

However, in view of the fact that the appellant remained in occupation after the cancellation of the agreement, it stands to reason that holding over damages would be due for payment.

Counsel for the appellant suggested, that, there was no evidence adduced as to what such holding over damages should be.

I am constrained to agree.

The claim in respect of holding over damages was not proved. The respondent did not lead any evidence establishing how much the holding over damages were.

Indeed, in his oral address, counsel for the respondent accepted that the entire monetary claim should be set aside.

The concession is well made.

View Appeal
HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

The first plaintiff is a farmer who owns Ziswa Farm (“the farm”) otherwise known as Farm 23 of Lawrencedale Estate in the District of Makoni, Rusape which farm he prefers to rent out while staying on it, as he currently rents it out to his neighbour, he having rented it out to the first defendant prior to that and yet to another person before the first defendant came in.

The second plaintiff is his wife, who, apart from the fact that she was cited as a party along with the first defendant in a joint venture agreement concluded between the couple and the first defendant, on 9 January 2009, has been cited in these proceedings in extremely unclear circumstances.

The first defendant is a commercial farmer, a tobacco grower of note, conducting such business generally at Landos Farm, Halfway House in Headlands and is a director of the second defendant, a duly incorporated company.

The plaintiffs instituted proceedings against the defendant, and, in their summons and declaration, they set out an array of claims, thirteen (13) in all, arising out of a lease agreement signed between the first plaintiff and the first defendant on 9 January 2009 on which date a second agreement titled “Memorandum of Joint Venture Agreement” was also signed between the first and second plaintiffs on the one hand and the first defendant on the other hand.

The plaintiffs averred, that, sometime in 2008 they had entered into a long term development lease agreement with the defendants for the use of the farm and that although the first defendant had signed as the tenant, the actual farming was done through the second defendant.

In terms of the lease agreement, the defendants were expected to put up and maintain infrastructure at the farm, like the construction of 44 houses for workers, dam, and barn construction.

The relationship between the parties deteriorated over time resulting in the defendants cancelling the lease agreement on 2 July 2012 before vacating the farm without notice.

The plaintiffs averred further, that, when the defendants vacated the farm they unlawfully removed certain items of property belonging to the plaintiffs valued at US$186,701 which amount they claimed.

The defendants badly damaged the plaintiffs property valued at $15,905.

They removed fences and gates as they vacated, whose value is $7,600.

During the tenancy, the defendants damaged four (4) barns which were falling at the time they left, while two (2) barns were badly cracked and supported by poles. This was in breach of the agreement of the parties requiring the defendants to keep the barns in good and perfect condition and to repair them to usable state when vacating.

The plaintiffs claimed $5,008 being the costs of repairing the barns.

In further breach of the agreement, the defendants left the farm without removing and destroying tobacco stalks from the land and seed beds which exercise the plaintiffs had to undertake at a cost of $780 including a fine paid to the Environmental Management Agency.

The plaintiffs claimed a sum of $26,313 being the value of their property and machinery including overhead water storage tank and pipes, workers houses, underground cables, water reservoir, cast iron pipes, pump unit, electricals at boreholes and at transformers.

The plaintiff averred further, that, in terms of the lease agreement, the defendants were obliged to deliver to them certain quantities of maize but failed to deliver 50 metric tonnes of maize worth $15,000 which amount the plaintiffs claimed.

They claimed a sum of $45,000 damages for loss of income for the 2012-2013 farming season they would have realised if the defendants had not prematurely terminated the lease agreement and without notice.

A sum of $64,160 was claimed for arrear rentals for the 2011-2012 tobacco crop, being 8% of the gross turnover in respect of crops produced at the farm in terms of the agreement given that 220,000kgs of tobacco were produced during that cropping season.

A sum of $1,980 refund of what the plaintiffs paid for rates and levies to Makoni Rural District Council was claimed, which should have been paid by the defendants in terms of the lease agreement.

The plaintiffs claimed $5,500 being their share of the hailstorm insurance claim made by the defendants to their insurers for the 2009-2010 and 2010-2012 seasons.

A sum of $67,506 was claimed as the value of a centre pivot and generator, which, although purchased by the defendants, they should have left at the farm for the plaintiffs benefit as part of the long term development of the plaintiffs farm.

They claimed $4,240 being 8% of the tobacco seedlings grown on their farm by the defendants.

The defendants have contested the claims, and, in their plea, they took issue with the citation of the second defendant as a party to the proceedings given that there was no agreement, of whatever nature, between the plaintiffs and the second defendant.

In respect of the first defendant, they averred that he complied with all the terms of his agreement with the plaintiffs and denied owing the plaintiffs any money.

The relationship between the parties suffered as a result of the plaintiff's endless interference with farming operations and peaceful enjoyment of the property resulting in a court order being sought and granted interdicting such interference.

The first defendant had to cancel the lease agreement after the plaintiffs had preferred false and malicious criminal charges against him.

The defendants averred that at the termination of the lease, a verification exercise was conducted by the parties which established that all the plaintiffs property had been accounted for, and, as such, none was removed or damaged.

In addition, the fact that the plaintiffs had forcibly taken possession of the farm and equipment, meant that the defendants could not be expected to account for the damage to any property during that period.

They denied vacating the farm secretly or removing fences and gates in the process, especially as the parties were aware of the termination and the defendants vacation of the farm. They denied vandalising any property and that the plaintiffs were entitled to any damages for loss of income.

The parties agreed on the issues for trial at the pretrial conference, which are captured in their joint pre-trial conference minute as:

(a) Whether there was an agreement between the parties as pleaded by the plaintiffs;

(b) Whether the defendants fully complied with the terms and conditions of the agreement;

(c) Whether some of the plaintiffs claims have prescribed, if so, which ones specifically; and

(d) Whether the plaintiffs are entitled to the claims set out in the summons.

Only the first plaintiff gave evidence while the second plaintiff chose not to. They also called witnesses, namely, Assistant Inspector Nixon N'andu, Canaan Nyamombe, and Fanuel Phange.

It was the evidence of the first plaintiff (Ziswa) that prior to the first defendant (Chadwick) approaching him in 2008 he had been leasing his farm to someone else, and that, after Chadwick left unceremoniously in July 2012, he again let out the farm to a neighbour of his, Mr Coleman of Mersy Farm, who, upon taking over, repaired the eight (8) barns which Chadwick had left in a falling condition.

Himself and Chadwick negotiated the lease agreement, which was reduced to writing; the latter having printed a standard form agreement obtained from the National Tobacco Association out of his computer.

He stated that they negotiated every clause, and, as they did so, they added annotations in long hand, which unfortunately were not initialled or counter-signed by the parties, although every page was initialled at the bottom.

After signing the lease agreement, they also prepared and signed a Joint Venture Agreement (JVA) at the instance of Chadwick who wanted it to be signed to protect the parties, given that politically leasing farms was unacceptable while joint venture agreements were tolerated.

As far as he was concerned, the real agreement between the parties was a lease and not a joint venture, which is why the Joint Venture Agreement (JVA) also spoke of a lease and rentals. He referred to both agreements which are part of exhibit 1.

Although both agreements were signed with Chadwick, the witness insisted that they were concluded with both Chadwick and the second defendant, Landos Farm (Pvt) Ltd (Landos) - a claim which is difficult to sustain given that Landos, as an incorporation, was not cited at all in both agreements.

He sought to hold Landos Farm (Pvt) Ltd liable because Chadwick introduced himself as its director and used its letterhead in correspondence.

Some payments were made by Landos.

His claim is based on both agreements.

He explained, that, while the written agreements were signed on 9 January 2009 he had already allowed the defendants to commence farming in August 2008 and that the written agreements only recorded what the parties had agreed.

It is significant that the lease agreement does not necessarily contain some of the necessary details, with the first clause omitting the name of the farm and its hectarage. It also omits the lease period and the date of commencement.

It only has the date of termination entered in pen.

On the various additions to the document, appended in barely legible ink, Ziswa said some were entered by himself while some were made by Chadwick as the two negotiated the terms of the agreement.

The lease provides, in clause 2, that the land was leased for purposes of growing tobacco on 30 hectares, maize on 40 hectares, 20 hectares of wheat or another crop agreed between the parties.

Ziswa said, practically, Chadwick only grew maize during the first year and did not do so for the remainder of the time he was on the farm, electing to concentrate on tobacco farming. He never grew wheat or any other crop for that matter.

The payment of rent is provided for in clause 3 which reads:

“The rent payable by the Lessee to the Lessor shall be 6% on the US$ of the gross turnover in respect of the crops produced on the said land, and, payment of such rent/lease shall be secured by means of direct payment into a FCA given by the lessee in favour of the Company against proceeds of tobacco sold through the Lessee's contract, and, in the case of other such as maize/wheat in equivalue (sic) it shall be executed and registered as soon as may be after the signing of this lease. An advance payment shall be discussed if necessary.”

Despite this provision, Ziswa testified that his claim was for 8% of the gross turnover which he justified by reference to a letter written by Chadwick, on a Landos letterhead, on 22 February 2011, which reads:

“Dear Mr Ziswa

RE: JOINT VENTURE OFFER FOR 2010-2011 SEASON FOLLOWING

I am writing to present my offer on the subject stated above. I am hoping my proposal will be acceptable to you and will be effective for the next three seasons.

I am proposing that I pay you 8% of the gross realisation from the tobacco sales as my joint venture offer. This will be for the sole use of your whole farm.

Please consider that this is the best that I can do. May I refer you to the cost of production document that I sent you earlier on. If I go beyond this offer, the whole enterprise ceases to be viable. I believe this offer presents a win win situation for both parties.

This really is the best that I can do. May you please inform me of your decision by or before 15 March so as to enable me to make preparations for the coming season.

Yours faithfully

Greame Chadwick”…,.

Although Ziswa said he accepted the offer, he did not say when and how this was done.

He did not produce any document of acceptance, neither did he expand on where the acceptance was communicated to Chadwick.

This gives credence to Chadwick's argument, that, his offer was never accepted and that the 6% contained in the lease agreement remained in force.

It is noteworthy that Chadwick appeared to have been writing in his personal capacity even though he used Landos's letterhead.

Ziswa said that the lease was to subsist for an initial period of 5 years but they then “moved to 8 years” and that it was “a developmental lease agreement” enjoining Chadwick to embark on improvements of a permanent nature on the farm, like the construction of dams, staff housing, improving barns and other infrastructural development.

He never did, except for the construction of 11 staff houses out of an agreed total of 44 houses. Even the 11 constructed were not completed. He only repaired one barn which had been burnt down prior to the commencement of the lease. Even in respect of that one, the parties did it together, with Ziswa providing the bricks. Chadwick, however, left the barns falling and supported by poles.

He said the failure to insert the lease period on the agreement was an oversight. So was the failure to insert the name of the leased farm and the date of commencement of the lease, but, it was 1 September 2008 while termination was at the end of August 2018 at the completion of 10 years.

It turns out it was not 5 years, neither was it 8 years, but, Ziswa did not explain when the lease period changed to 10 years.

He stated, that, at the commencement of the lease, they were to hand over to Chadwick their assets located at that farm which the latter was to use for his farming activities.

In that regard, and in the process of identifying and handing over those assets, they produced an inventory at entry point listing these assets. He made reference to p20 to 26 of exhibit 1, the inventory in question, saying all the listed assets were handed over in good working order.

The inventory has a column with the title “Quantity” which he says is where they endorsed not only the quantity of the items involved but also the condition of the items so that if the item was not in good order that would be stated in that column. The fact that there would be no comment on an item meant that it was in good order.

A look at that inventory shows only a couple of comments.

The first relates to diesel tanks with the comment “on stand”. The second relates to an MF tractor with the comments “1 No Wheels.” Other than the description of the disc harrow as “1 red in colour” nothing supports Ziswa's claims on the condition of the items whose state was not given throughout.

Both parties kept their copy of the inventory.

Ziswa went on to say, that, although most of his claims are not based on the written agreements, they had a lot of discussions which resulted in agreements not reduced to writing.

As far as he is concerned, a verbal agreement is also binding. He referred, in that regard, to the agreement on the construction of dams.

After going through the list of items which he said were handed over to Chadwick, including what he said were new “flue pipes not fitted to the barns but kept at the sheds” as well as his own stock of fertilisers not for use by Chadwick, Ziswa went on to say that the tenant had taken over the items and grew tobacco for four (4) years with him being paid due rentals for 2009, 2010, and 2011. He was however not paid anything for the last year the tenant was at the farm, which is 2012.

The claim for arrear rent therefore relates to the 2011 to 2012 tobacco growing season.

In arriving at the 8% of the tobacco produced for that season (as opposed to 6% stated in the agreement), he had to estimate using the sale sheets of Landos which he obtained.

He went through those sale sheets stating that he had to resort to estimation because the tenant did not give him the information.

Based on the sale sheets, and the other information on the tobacco that was produced, they computed that 220,000kgs of tobacco was sold during that year and his 8% of it is the sum of $64,160 being claimed as arrear rental for the 2011-2012 growing season.

When the plaintiffs wrote a letter of demand to Chadwick, on 23 July 2012, they stated that 205,800kgs of tobacco had been realized at the farm during that period, which had been sold at $4=10 per kg giving a gross of $843,780. They were entitled to 10% of it which is $84,378.

It is not clear where 10% cropped up from, but, they claimed it all the same.

In their summons, the claim was reduced to 8% of the gross turnover estimated at 220,000kgs giving the $64,160 being claimed.

Ziswa stated, that, in terms of the parties agreement, the tenant was obliged to pay rates and levies due to Makoni Rural District Council which, for the year 2011-2012, was $1,980. As the tenant did not pay in January 2012, he was forced to pay on their behalf. He would like to be reimbursed that amount.

He stated, that, although he received a receipt upon payment, he was unable to produce it.

In support of his claim, that the tenant was obliged to pay rates, Ziswa made reference to a letter written by Chadwick, again on the Landos letterhead, on 9 November 2010, which reads, in relevant part, as follows:

“Dear Mr Ziswa

RE: RESPONSE TO YOUR LETTER DATED 5/11/10

1. Landos Farm agrees to make a payment of: $1,440 (that had been paid for rates); $750 (for 50 cords of wood @ $15); $350 (barn fire); Total 2,540.

The money will be paid in on Wednesday the 10th of November 2010. The proof of payment will be on the farm on Thursday the 14th of November 2010 as well as for you to collect.”

Unfortunately, Ziswa did not see the need to produce the letter of 5 November 2010 which was being responded to.

He however maintained that the payment of rates was the responsibility of the tenant - even though the lease agreement had no such provision.

In respect of the claim for $5,500, Ziswa stated that the tenant was obliged to insure the tobacco crop against hailstorm destruction. In the event that the tobacco crop is destroyed by hailstorm, the insurer would pay for it.

Hailstorm destroyed the tobacco crop and the tenant claimed from his insurance and was paid, but he did not transmit to him 8% share due in terms of the lease agreement. He is entitled to a percentage of the gross turnover and would also be entitled to the same percentage of insurance payment made for destroyed crops. He is not aware of the exact amount involved because Chadwick refused to give him the figures.

He has had to estimate the figure based on the investigations which he carried out involving his discussions with the employees of the insurer who came to the farm for an inspection.

He did not disclose what those investigations revealed, only stating that he estimated the figure based on his experience and the damage he observed on the crop - an explanation not helpful at all.

Asked as to why the claim for hailstorm insurance, involving a 2009-2010 crop, would be made by summons served on 26 November 2012, outside the prescriptive period of three (3) years, Ziswa dithered.

He then said that “in the heat of things” there was a typing error in the summons because his hailstorm claim is for the 2011-2012 cropping season and not 2009-2010 claimed in the summons.

Significantly, no attempt was made to amend the pleadings.

Pressed by counsel on how he could possibly justify a claim in which he had no figure, Ziswa offered to withdraw the hailstorm claim accepting that it could not be proved.

In respect of the claim for the replacement value of the centre pivot and generator, Ziswa had a difficult time indeed.

He said that the tenant had purchased these movable assets and brought them to the farm for use during the tenure of the lease. He had, however, taken them away at the end. As far as he is concerned, these items fall under the long term development provision of the parties agreement, meaning that they should accrue to the farm. As such, they should be returned or their value paid.

As to how such items should qualify for permanent improvements, he could not explain.

His problems were compounded by the fact, that, he had, through a letter written on his behalf by his legal practitioners, on 12 April 2012, written to Chadwick, stated in part that:

“Of essence, the agreement was that of long term development partnership in terms of which you are obliged to undertake permanent structural development on the farm, such as construction and other infrastructure development. We have noted with concern that you have failed to meet your side of the bargain. You undertook to built (sic) 44 houses for the workers, however, only 11 have been constructed to date. You have bought a centre pivot for irrigation. However, it does not qualify as long term development because it depreciates in value. Also, there is a huge list of farm equipment that has broken down which you have not bothered to repair.”

There you have it.

The plaintiffs themselves did not regard the centre pivot as a long term developmental addition, and, by any stretch of the imagination, the generator cannot be said to be either.

The plaintiffs themselves understood long term to apply to construction of workers houses, dam, and barn construction, and other infrastructural development.

Nothing more needs to be said about that.

On the value of the property either allegedly removed from the farm and not returned, or those damaged by the tenant and not repaired, Ziswa reiterated that all the property given to the tenant, at commencement, was not only usable but also in good working order.

He pointed out, that, at no time did they make life difficult for the tenant because he had free access to the farm at all times and had guards looking after the farm.

It was only after he discovered that they were removing his property from the farm and refusing to return it, and failing to pay to him what was due in terms of the agreement, that he moved in with three (3) of his own guards and closed the barns to prevent the tenant from removing any tobacco produce.

The tenant removed an electricity line running from the first to the second dam, wires and poles were all removed. The implements listed in the pleadings were also removed, including underground pipes.

He produced exhibit 2, an album of photographs showing the state of some of the items which had been given to the tenant at the commencement of the lease agreement. The photographs were taken by his wife, the second plaintiff, and their legal practitioner, in the presence of police inspector N'andu at the time that the defendants vacated the farm.

Unfortunately, none of the photographs depicts the appearance of any of the items at the commencement of the lease agreement, and would, naturally, be unhelpful standing on their own, for comparison.

Ziswa stated, that, Chadwick had used most of his equipment during the lease but broke down most of them with some of the damage being inflicted deliberately.

For more than two (2) years, Chadwick had not repaired the damaged equipment.

He made reference to a list of items, p15 of exhibit 1, which he said was property stolen and removed from the farm, and another list, p18, which he said was property removed and returned in a damaged state.

Although in the summons he was claiming sums of $187,707 as the value of the property removed and not returned, $15,905 as the value of property removed and returned in a damaged state, $7,600 as the value of fences and gates removed or badly damaged by the tenant, and $15,008 being the cost of repairing the damaged tobacco barns, Ziswa said he has since seen the light.

He now realizes that he cannot sustain those claims given that the items involved were not new at the time the tenant took them.

He is therefore not claiming the values contained in the summons but would now defer to the testimony of an expert witness, Fanuel Phange, an accountant who penned exhibits 3 and 3a representing the depreciated values of all the items involved....,.

The last witness to testify on behalf of the plaintiff was Fanuel Phange, the managing partner at Mazhande & Co. Chartered Accountants of Harare, who holds a Bachelor of Accountancy degree obtained from the University of Zimbabwe in 2001. He attained his articles at Price Waterhouse in 2004, and is an affiliate of the Institute of Chartered Accountants. He has worked overseas and South Africa.

He stated that he has vast experience in asset valuation, although this was his first valuation of farming equipment.

He testified, that, asset valuation entails coming up with the dollar amount at which an asset should be carried at a given date. He stated that there are different ways of doing so. The gross replacement cost of an asset is, in essence, the cost of acquiring a new one while deprecation is the demortisation or writing down of an asset. It is the taking away of a percentage from the original value of an asset.

He was consulted by the plaintiffs to come up with the depreciated value of all the assets whose value is being claimed from the defendants. He was told that the assets were not new when they were given to Chadwick. He was given the list of items involved and quotations the plaintiffs had obtained to replace them from which he extracted the prices of the various items and depreciated them.

After undertaking the exercise, he generated exhibits 3 and 3a showing that the depreciated values of tractors and related equipment being claimed is $64,170; building improvements $62,179; building, irrigation, curing, and water pumping equipment $203,890; and tools $34,490 giving a grand total of $364,729 being claimed by the plaintiffs.

In light of the fact that the bulk of the assets were used, he advised his client, that, in estimating their value it would be best to use the depreciation replacement cost as it would be unfair to expect someone to replace a used item with a new one.

That is accepted in accounting and covered by International Standard No.16.

He, however, did not depreciate the four (4) flat tractor tyres because the client advised him that they were replacing new and unused tyres. There were also used items which could only be replaced with new ones which were not depreciated. He had given different items different life spans depending on their nature in order to determine their depreciated value.

Under cross examination, Phange conceded that he had not bothered to inspect the items he was asked to depreciate.

In fact, he did not visit the farm but undertook the exercise from the comfort of his office; yet, generally, it is necessary to inspect.

He conceded it was his first time to depreciate farm equipment, although the concept is the same in respect of all assets.

Although it had been necessary to examine the items in question, he had relied on Ziswa's 'say so' who is the same person who gave him the quotations he had obtained from various suppliers. He had not even interviewed the suppliers on their prices but accepted everything as given to him by Ziswa. He had relied on single quotes and not the usual three (3) quotes. He relied on detailed descriptions of items given to him by Ziswa and also conducted an online research on items.

He did not explain why he had not gone to inspect or examine the items.

He conceded that it was possible that Ziswa could have supplied him with manufactured information about the equipment and created dates of purchase and that exhibits 3 and 3a are not factual but based on assumptions made by Ziswa, and that given different quotations for the items, he would come up with different values. It is Ziswa who gave him the background of when he had purchased each item and how much he had expected to use each one of them.

Phange may be an accomplished professional, but, I have serious difficulties with his evidence.

He appears to have been an armchair expert, if not a disinterested witness, content with only flaunting his professional qualifications and expecting the court to accept his testimony hook, line, and sinker without justification. He relied entirely on information fed to him by an unreliable witness, Ziswa, who has been shown to have a penchant for inconsistencies and wanting to exaggerate claims.

Phange accepted that, ordinarily, it would be necessary to examine items being subjected to evaluation. He did not bother to do so.

From where I am standing, the entire valuation process, except perhaps for the formula gleaned from international standards, was fictitious and extremely unreliable.

HB45-11 : DAVID MATSITSIRO vs CHAMUNORWA MUSINDO
Ruled By: KAMOCHA J

The applicant has no defence.He assaulted the respondent and caused blindness in one eye. The respondent suffered permanent disability due to the blindness in one eye. He complained about the quantum but produced no precedent to illustrate that what was awarded in the default judgment was out of step.This was ...

Appealed
SC55-24 : JAYESH SHAH vs PROFESSOR CHARLES NHERERA
Ruled By: GWAUNZA DCJ, GUVAVA JA and CHATUKUTA JA

This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 16 December 2021. The court a quo granted the respondent damages in the sum of US$30,000 for malicious prosecution and US$100,000 for malicious arrest and detention.The damages were to be paid ...

FACTUAL BACKGROUND

The respondent was the Chairman of the board of directors of Zimbabwe United Passenger Company ('ZUPCO'). He was also Vice-Chancellor of the Chinhoyi University of Technology and a member of the Zimbabwe Examinations Council and the Parastatals Advisory Council. He held various positions in other local and regional organisations.

The appellant had an interest in a company known as Gift Investments (Pvt) Ltd which supplied mini-buses to the Zimbabwe United Passenger Company (ZUPCO). The buses were supplied pursuant to a tender process approved by the State Procurement Board.

In November 2011, the respondent issued summons against the appellant claiming damages in the sum of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention, interest thereon at the rate of 5% per annum and costs of suit.

The respondent averred, that, the appellant had made allegations that he had, in his capacity as the Chairperson of the Zimbabwe United Passenger Company (ZUPCO) Board of Directors, solicited for a bribe from Gift Investments (Pvt) Ltd in order to facilitate the purchase, by ZUPCO, of 17 buses from the company.

The company had previously sold some buses to ZUPCO with the authority of the State Procurement Board.

Seventeen buses, painted in the corporate colours, remained in the company's stock. The Zimbabwe United Passenger Company (ZUPCO) had not placed an order for the buses which were not covered by the authority issued by the State Procurement Board.

He contended, that, the appellant made reports on the allegations to various people, high ranking Government officials, and institutions.

As a result of these allegations against him, he was arrested by the police on 21 March 2005 and detained on charges of corruption. He was arraigned before the Regional Magistrates Court, Harare for contravening section 3(1)(a)(i) of the Prevention of Corruption Act [Chapter 9:16]. The trial magistrate found him guilty and sentenced him to 3 years imprisonment of which one year imprisonment was suspended for a period of five years on condition of future good behaviour.

The effective sentence was 2 years imprisonment.

Aggrieved, the respondent filed an appeal before the High Court against both conviction and sentence.

On 19 November 2009, the High Court quashed the conviction and set aside the sentence. By then, the respondent had served the effective sentence of two years.

The claim for damages was instituted soon thereafter.

The respondent averred in his claim, that, he was subjected to humiliation from the time of arrest up to his acquittal. As a result of his arrest, prosecution, and imprisonment, at the instance of the appellant, he suffered injury to his reputation, both locally and internationally, and injury to his dignity. He was also deprived of his liberty. He lost his positions as the Vice Chancellor of Chinhoyi University of Technology and as the Chairperson of the Zimbabwe United Passenger Company (ZUPCO) Board of Directors.

The appellant admitted, in his plea, to having made the report to the police. He however denied having done so maliciously.

He averred that he only informed the police that the respondent had solicited a bribe from him, and the information was true.

He maintained that the decision to arrest the respondent was made by the police and not by him, after the police had formulated a reasonable suspicion that an offence had been committed. He also denied causing the prosecution of the respondent. He argued that the decision to prosecute the respondent was made by the Attorney General, in the exercise of his constitutional mandate. He averred that the decision to imprison the respondent was made by the trial magistrate after due consideration of the evidence placed before her during trial.

At the trial, the appellant applied for absolution from the instance at the close of the respondent's case. The appellant submitted, that, the respondent had no prima facie case against him. The court a quo granted the application. It held that there was evidence that the respondent had solicited for a bribe. It further held that the respondent failed to show how he had arrived at the damages he was claiming.

Disgruntled by the decision, the respondent noted an appeal before this Court under SC634/19. He argued that the court a quo had misdirected itself in granting the appellant absolution from the instance. This Court determined the appeal in (Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19) (Nherera v Shah).

FINDINGS OF THIS COURT IN NHERERA v SHAH SC51-19

The court made the following findings:

(a) In order to succeed in his claim for damages, the respondent was required to prove four requirements, being that:

(i) The arrest, prosecution, and detention were instigated or procured by the defendant;

(ii) There was no reasonable and probable cause for his arrest, prosecution, and detention;

(iii) The arrest, prosecution, or detention was actuated by malice; and

(iv) The prosecution failed.

(b) There was sufficient evidence before the court a quo, that, the appellant had instigated or procured the respondent's arrest. The appellant had admitted, in his plea, that he had informed the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, and the then Minister of State Security, Mr Goche. He had also admitted, in the plea, that he made a report to the police.

He further admitted that he was granted immunity from prosecution by the police and the Attorney General so that he would assist in the investigation of the allegations he had made against the respondent and assist in a successful prosecution of the respondent;

(c) There was no evidence suggesting that the respondent had attempted to solicit for a bribe from Gift Investments. The appellant did not, prima facie, have reasonable and probable cause for the respondent's arrest or prosecution;

(d) The court a quo seriously misdirected itself in relying on evidence adduced in the Magistrates Court during the respondent's prosecution which was not adduced and tested before it. This was particularly so where the criminal proceedings had been set aside by the High Court, on appeal, on 19 November 2009;

(e) The judgment of the High Court, quashing the respondent's conviction, was extant. The court a quo should not have ignored it. Following the judgment of the High Court, the requirement that the prosecution had failed had therefore been met;

(f) The question of malice could only be determined after the appellant's testimony in his defence. The appellant had disputed, during the cross examination of the respondent, that he had made a report to the police. There was therefore need for putting the appellant on his defence so that he would, among other issues, explain the inconsistency between his admission in his plea, that he denied under cross-examination of the respondent that he ever made a report to the police;

In the final analysis, the court held that the respondent had established a prima facie case against the appellant. It concluded that the court a quo ought to have dismissed the application for absolution from the instance. It ordered as follows:

“1.The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and in its place the following substituted:

'The application for absolution from the instance be and is hereby dismissed with costs.'

3. The matter is remitted to the court a quo for continuation of the trial proceedings.”

PROCEEDINGS BEFORE THE COURT A QUO

After the above findings by this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the trial proceeded before the court a quo with the appellant testifying.

The appellant adopted his plea, his testimony in the criminal proceedings against the respondent in the Magistrates Court, and affidavit he deposed to on 27 July 2006 as part of his evidence on oath. His evidence was as follows:

In 2005, the respondent demanded a US$5,000 bribe, per bus, for the Zimbabwe United Passenger Company (ZUPCO) to flight a tender for the purchase of buses. He did not make a report to the police as alleged by the respondent. He, however, informed a number of people about the respondent's conduct. These included the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, the then Minister of State Security, Mr Goche, and some Central Intelligence Officers.

He informed the police, sometime in April 2005, that the respondent had solicited for a bribe in 2003 to facilitate the renewal of a lease agreement between Gift Investments and ZUPCO. He had paid the respondent and Bright Matonga a total of $20,000. The respondent was arrested in relation to the 2005 solicitation after he made reports to the Government officials.

DETERMINATION BY THE COURT A QUO

At the conclusion of the trial, the court a quo made the following findings:

The findings by the Supreme Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19 were binding on it.

The Supreme Court had determined that the appellant placed information before a police officer that the respondent had solicited a bribe from him leading to the arrest, prosecution, and detention of the respondent. He did not, prima facie, have any reasonable and probable cause for doing so. The prosecution of the respondent had failed when his conviction was quashed on 19 November 2009. The respondent had, therefore, established a prima facie case on these issues.

The appellant was required to rebut the prima facie case.

As regards the appellant's testimony, the court a quo made the following findings:

The appellant was not a credible witness. He had admitted in his plea (which was now part of his evidence-in-chief) to making the report to the police leading to the arrest, prosecution, and detention of the respondent.

His oral evidence was inconsistent with his plea. The oral evidence was also at variance with his evidence during the respondent's criminal trial where he again admitted making the report.

It was common cause that the respondent was arrested, prosecuted, and imprisoned after the accusations of soliciting for a bribe were levelled against him by the appellant.

The appellant failed to disprove the prima facie case found to have been established by the respondent, on appeal, in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.

He had caused the arrest of the respondent without reasonable and probable cause and had done so in bad faith. His report to the police was therefore malicious.

The court a quo further held that the appellant's liability had been proved and the requirements for delictual damages satisfied.

It further held that the respondent suffered humiliation, ill-treatment in prison, and lost his employment due to the arrest, prosecution, and imprisonment.

The court a quo found, that, the respondent had not led evidence on how the sums of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention were arrived at. It however held, that, it still could make an award on the strength of relevant principles on the assessment of damages evolved from the jurisprudence coming out of our courts.

It held that the claim for $100,000 for malicious prosecution was extremely excessive, and, in its stead, awarded the respondent US$30,000. It also found the claim of US$300,000 for malicious arrest and detention to be excessive and awarded the respondent US$100,000 instead.

The court a quo further concluded that the damages would be paid in RTGS dollars at the interbank rate prevailing on the date of payment.

Aggrieved by the court a quo's decision, the appellant noted an appeal to this Court on the following grounds of appeal:

GROUNDS OF APPEAL

1. The court a quo erred and misdirected itself in law in holding that the dicta of this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, that there was, at the close of the plaintiff's case, a prima facie case (a test in any event not applicable to absolution from the instance) mitigating against the grant of absolution from the instance meant that if, in the court's opinion, the appellant had not controverted “the prima facie evidence of the plaintiff mutated to proof of the plaintiff's case on a balance of probabilities” in entertaining the first respondent's application as a court of first instance.

2. The respondent, having relied on the appellant's affidavit statement to the police, a statement that the appellant also adopted in his evidence before the court a quo in circumstances in which the High Court had found, on the basis of the same affidavit statement, in Zimbabwe United Passenger Company v Shah, which judgment was upheld on appeal to this Court, that the appellant had in fact paid a bribe to the respondent with whom he had a corrupt relationship, the court a quo erred in holding that the appellant had not controverted the “prima facie” evidence of the respondent.

3. A fortiori in holding as impugned in ground of appeal number 2 above, the court a quo infringed the appellant's right to the protection of the law guaranteed in section 56 of the Constitution of Zimbabwe.

4. For even the stronger reason, the court a quo erred in finding that the appellant's statement was not given in good faith and did not constitute reasonable and probable cause, but constituted a malicious and act wrongful instigating (sic) criminal proceedings against the respondent.

5. The court a quo, having held that the respondent had not led evidence on the financial prejudice he allegedly suffered in his defence of the criminal proceedings, or how he arrived at the sums claimed as damages, erred, in any event, in not granting absolution from the instance at the close of the trial in respect of the damages claimed.

6. The court a quo, having made a finding of the fact, and held in Nherera v Shah 2015 (2) ZLR 455 at 470C-D (H) that the respondent “did not attempt to show how the damages claimed were arrived at” which judgment was set aside on a different basis, and no further evidence having been led by the respondent since this finding, erred and misdirected itself and acted arbitrarily in awarding any damages.

7. In proceedings as complained of in grounds of appeal 5 and 5 (sic) above, the court a quo breached the appellant's right to the protection of the law protected and guaranteed in section 56(1) of the Constitution as well as the dictates of a fair trial contemplated in section 69(1) of the Constitution.

8. The court a quo erred in any event in awarding damages that are inconsistent with those awarded in comparable cases, and are, on the facts of the case, so outrageous that no court acting properly would have awarded the quantum of damages, and in a currency other than the legal tender of the Republic of Zimbabwe.

PROCEEDINGS IN THIS COURT

Submissions by the Appellant

The appellant abandoned grounds 3 and 7 which were raising constitutional issues not dealt with in the court a quo.

Counsel for the appellant submitted, that, notwithstanding the decision in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the respondent did not establish his case on a balance of probabilities at the close of his case a quo.

Counsel argued, that, the Supreme Court had applied a wrong test in determining whether the appellant was entitled to absolution from the instance.

He argued that the respondent was required to establish whether, at the close of his case, there was evidence upon which a reasonable court, acting carefully, might have given judgment for the respondent on the issues before the court.

It was argued, that, the court had erroneously stated that the respondent needed to and had established a prima facie case.

It was further argued, that, the appellant had led evidence, in the form of a judgment of the High Court in Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 in which a finding had been made that the respondent had solicited from and was paid a bribe by the appellant.

It was further argued, that, this Court also held in Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20, that, the appellant had bribed the respondent and the then Chief Executive Officer of ZUPCO, in a bid to induce the renewal of a lease between Gift Investments (Private) Limited and ZUPCO from 01 January 2004 to 31 December 2009.

It was submitted, that, the facts in that case were centred on the same issues as in the present appeal.

It was further submitted, that, the findings in both Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 and Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20 constituted sufficient evidence to rebut the respondent's prima facie case.

It was argued, that, the findings in both matters established that there was a relationship of corruption between the appellant and the respondent.

Counsel argued, that, the appellant had rebutted the respondent's prima facie case and established, on a balance of probabilities, that, he had not maliciously instigated the respondent's arrest and subsequent prosecution and imprisonment.

Counsel for the appellant further contended, that, the court a quo erred in granting the respondent damages in circumstances where the respondent did not lead evidence justifying the quantum of such damages.

He argued, that, when the matter was remitted a quo, the respondent did not lead further evidence, and, particularly, on the damages that he sought.

It was further argued, that, the award for damages contravened the law in that it was denominated in United Dollars which was not the legal tender in use in Zimbabwe.

It was submitted that section 3(2)(b) and (c) of the Exchange Control (Exclusive Use of Zimbabwe Dollar for Domestic Transactions) Regulations 2019, Statutory Instrument 212 of 2019, SI212 of 2019 (the Regulations) proscribed settlement of any obligation, and demand of the payment of anything, in foreign currency.

Submissions by the Respondent

Per contra, counsel for the respondent argued, that, the respondent was not a party to Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 and Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20.

It was further argued, that, the findings in those cases were not therefore applicable moreso as the respondent never had an opportunity to defend himself.

It was submitted that the findings related to the appellant's own confession to have paid the respondent a bribe. It was further submitted that the respondent could not be bound by the appellant's confession.

It was submitted, that, the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, being a judgment of the Supreme Court, was binding on the court a quo. The court a quo therefore did not misdirect itself when it held that it was bound by the Supreme Court judgment.

Counsel for the respondent submitted, that, the award of damages, by the court a quo, was made on the basis of the evidence on record as to the harm suffered by the respondent. He further argued, that, there was no need to lead evidence on the quantification of the damages as they could not be arrived at with mathematical precision.

He submitted, as regards the applicable currency, that the law does not preclude the granting of an award in foreign currency.

ISSUES FOR DETERMINATION

1. Whether or not the court a quo misdirected itself in holding that it was bound by the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.

2. Whether or not the court a quo misdirected itself in holding the appellant liable for damages for malicious arrest, prosecution, and detention.

3. Whether or not the court a quo misdirected itself in awarding damages in favour of the respondent in the absence of evidence from the respondent on how the damages were computed.

4. Whether or not it was competent for the court a quo to award damages denominated in United States dollars.

ANALYSIS

Whether or not the court a quo misdirected itself in awarding damages in favour of the respondent in the absence of evidence from the respondent on how the damages were computed

The appellant submitted, that, the court a quo erroneously awarded damages to the respondent in circumstances where the respondent had not adduced evidence justifying the quantum of such damages.

He also argued, that, the court a quo quantified the damages in spite of its finding that no evidence on quantification had been adduced.

It was contended, that, absolution from the instance ought to have been the appropriate judgment of the court a quo.

It is trite that damages for the cause of action brought by the respondent cannot be computed with mathematical precision.

Because the damages are not capable of precise calculation, the determination of the quantum of damages is within the discretion of the court, which must be satisfied that the quantum to be awarded is just and fair.

It is therefore not always necessary that a party leads evidence to establish the quantum.

In Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (S) GUBBAY JA remarked that:

“What is essential is for a trial court to draw on its own experience in making an assessment of damages: an exercise which is necessarily dependent upon some degree of surmise, conjecture, and imagination, for general damages are not capable of exact arithmetic calculations.”…,.

In Minister of Police v Page (CA 231/19) [2021] ZAECGHC 22…, it was held that:

“It is trite that in cases involving deprivation of liberty, the quantum of damages to be awarded is in the discretion of the trial court: to be exercised fairly, and generally calculated according to what is equitable and good, and on the merits of the case itself (ex aequo et bono). As a result, an Appeal Court should be slow to interfere, unless there are specific reasons to do so.”

The factors that a court should consider in assessing the damages are spelt out in VISSER & POTGIETER, Quantum of Damages for Injury to Personality, 3rd ed, 2012. It is stated at p545-548 that:

“15.3.9 Unlawful and malicious deprivation of liberty or arrest

In deprivation of liberty, the amount of satisfaction is in the discretion of the court and calculated ex aequo et bono.

Factors which can play a role are the circumstances under which the deprivation of liberty took place: absence of improper motive or 'malice' on the part of the defendant; the harsh conduct of the defendants, the duration and nature (eg solitary confinement or humiliating nature) of the deprivation of liberty; the status, standing, age, health and disability of the plaintiff; the extent of the publicity given to the deprivation of liberty; the presence or absence of an apology or satisfactory explanation of the events by the defendant; awards in comparable cases; the fact that in addition to physical freedom, other personality interests such as honour and good name as well as constitutionally protected fundamental rights have been infringed; the high value of the right to physical liberty; the effects of inflation, the fact that plaintiff contributed to his or her misfortune; the effect an award may have on the public purse; and, according to some, the view that the actio injuriarum also has a punitive function.”

The assessment of damages for malicious prosecution is again discretionary, taking into consideration the same factors as in the assessment of damages for malicious arrest and deprivation of liberty: see VISSER & POTGIETER, Quantum of Damages for Injury to Personality, 3rd ed, 2012….,.

The court a quo was mindful of its discretion, and the factors to be considered in the exercise of that discretion.

After referring to relevant authorities, such as Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (S) and Fabiola v Mvudura Louis HH25-09, it remarked at p14 that:

“However, the relevant considerations in assessing the damages, as the authorities cited above show, start from the listing of what the plaintiff was immediately before the event causing his loss occurred. Then, there was the event of his arrest, prosecution, and detention. It caused what the plaintiff became at the time of his release from prison which determined the reduction, inter alia, of his patrimony and his good image in the eyes of both the public and members of his family.

I have already set out what the plaintiff was before the event. As a result of it, he lost his prestigious and well-paying job as the Vice Chancellor of Chinhoyi University of Technology. While he did not lose his qualifications, he lost his benefits and income. These include the use of his personal issue Mercedes Benz motor vehicle, entertainment, housing, security, fuel, and cell phone allowances. He also lost educational benefits for his two children and wife.”

It further remarked at p16 that:

“Regarding the claim of US$300,000 for malicious arrest and detention, it should be recalled that the delict occurs when there is no reasonable or probable cause for the allegation of criminal conduct. The institution of proceedings constitutes an abuse of the right to lay genuine complaints. In such circumstances, the complaint by the defendant, as has been shown above, is without foundation and intended to cause harm or injury to the plaintiff.

The plaintiff suffered ill-treatment in prison, where he endured poor prison conditions and diet. He was taken away from his family and lost his job and other contacts. In fact, the loss of liberty, in itself, is such deprivation of a constitutional right that it cannot be countenanced where the basis for it is malice. I have related to the financial loss which the plaintiff had to bear over and above all else to show that indeed considerable compensation is called for.”

The court a quo exercised its discretion judiciously as it took into account the relevant factors requisite in the assessment of general damages for malicious arrest, prosecution, and detention.

The reference by the court a quo to lack of evidence to establish the quantum of damages is, therefore, of no moment.

View Appeal
HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH
Ruled By: MATHONSI J

The facts of this matter are aptly captured in two earlier judgments.

The first is a judgment of this court in Nherera v Shah 2015 (2) ZLR 455 (H) which granted absolution from the instance at the conclusion of the plaintiff's case. The second is a judgment of the Supreme Court, on appeal, in Nherera v Shah SC51-19 which allowed the plaintiff's appeal against the grant of absolution from the instance and remitted the matter to this court for continuation of the trial proceedings.

For completeness, and to put the matter in proper perspective, I will summarise those facts as follows:

On 30 November 2011, the plaintiff sued out a summons against the defendant claiming damages of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention....,.

Damages are simply a sum of money given as compensation for loss or harm of any kind: see MUNKAMA, EXALL, Munkman on Damages.

The process of assessment requires the court to determine the general standard or measure of damages to be awarded. What has gained notoriety is that it is impossible to determine the actual consequences of an event without comparing the position before the event.

In respect of compensatory damages for delict, the purpose of an award is to place the plaintiff in the position he would have been in if the wrong had not been committed. In the words of LORD BACKBURN in Livingstone v Rawyards (1880) 5 App Case 25 at 39:

“Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who had been injured or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”

Certain broad principles in the assessment of damages, generally, have evolved from the jurisprudence coming out of our courts.

In Minister of Defence and Anor v Jackson 1990 (2) ZLR 1 (S) the Supreme Court set out some of the guidelines and principles to be followed when assessing damages. Though not exhaustive, and the case dealt with bodily injury, they include the following:

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

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

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

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

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

(f) Awards must reflect the state of economic development and current economic conditions of the country.

In Muzeya v Marais and Anor 2004 (1) ZLR 326 (H)…, CHINHENGO J advocated the adoption of the principle of nominalism in dealing with all obligations sounding in money on the basis that a departure from the principle will create such uncertainty in the law that the whole system will become unworkable. He concluded:

“Therefore, a debt sounding in money must be paid in terms of the nominal value of the currency irrespective of any fluctuations in its purchasing power. In any event, I think the principle of nominalism is even-handed because it places the risk of deprecation of currency on the creditor and that of appreciation on the debtor.”

This court also dealt with that issue in Fabiola v Mvudura Louis HH25-09 where MAKARAU JP…, ruled that the court has a discretion to award judgment in the currency that will redress the injury and adequately compensate the plaintiff for the loss.

See also Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe (Pvt) Ltd 1989 (3) SA 191; Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd 2009 (1) ZLR 326.

Regarding the time at which to measure delictual damages, the general rule is that the time at which to measure them is ordinarily the date of the delict, because, that is when the plaintiff's patrimony is reduced: see Parish v King 1992 (1) ZLR 216 (S)…,.; Phillip Robinson Motors (Pty) Ltd v N.M. Danda (Pty) Ltd 1975 (2) SA 420 (A)…,.

That rule is however not cast in stone.

It is a flexible one depending on the type of loss and also on the overriding principle, that, in awarding damages, the court should try to assess an amount which is fair to the plaintiff and to the defendant. In doing so, the court is not obliged to follow one or other method of calculation: see General Insurance v Summons Nhlumayo 1987 (3) SA 577 (A) (quoted with approval in Parish v King 1992 (1) ZLR 216 (S)).

The primary consideration is to award the wronged party the value of his order or her loss.

In assessing damages, this court is constrained by the fact that the plaintiff only claimed two globular figures of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention. Having done so, he did not lead evidence breaking down how these sums are arrived at.

The closing submissions made by counsel are equally unhelpful in that no breakdown is given and neither is there any method of calculation given. It is as if the plaintiff left everything in the hands of the court after laying out the details of the suffering.

For his part, the defendant did not let out anything at all.

While it was apparent from the judgment of the Supreme Court that it was “game over” in so far as liability was concerned, the defendant chose not to make any concessions be it in respect of liability or the quantum of damages. He was content to doggedly deny all form of liability.

The task of quantification is therefore onerous indeed.

However, the relevant considerations in assessing the damages, as the authorities cited above show, start from the listing of what the plaintiff was immediately before the event causing his loss occurred. Then, there was the event of his arrest, prosecution, and detention. It caused what the plaintiff became at the time of his release from prison which determined the reduction, inter alia, of his patrimony and his good image in the eyes of both the public and members of his family.

I have already set out what the plaintiff was before the event.

As a result of it, he lost his prestigious and well-paying job as the Vice Chancellor of Chinhoyi University of Technology. While he did not lose his qualifications, he lost his benefits and income. These include the use of his personal issue Mercedes Benz motor vehicle, entertainment, housing, security, fuel, and cell phone allowances. He also lost educational benefits for his two children and wife.

This court will have to estimate what it was worth to see her daughter through the remaining years at University of Cape Town and his son to progress from Form 3 at Gateway until completion of University education.

No evidence was given on how the children progressed after his arrest.

This court will also have to estimate how much the plaintiff lost in earnings at Chinhoyi University of Technology. He said at the material time he was earning in Zimbabwe currency “in excess of three million Zimbabwe dollars.”

I take it to be an annual income.

After spending 16 month in prison, it took him another 6 months to get a job, initially at Urban Development Co-operation where he rose to the position of Acting Chief Executive Officer.

The plaintiff did not prove the rest of the earnings he lost, either as Board Chairman of Zimbabwe United Passengers Company (ZUPCO) or as consultant of universities.

I am unable to take any of these into account.

I consider that in actual monitory terms, the income he lost may be gleaned from his letter of appointment as Acting Pro Vice Chancellor dated 8 January 2003. On terms of that letter:

“Your salary will be paid at the rate of $2,040,000 per annum. You will also receive the following taxable monthly allowances:

(i) A representation/entertainment allowance payable at the rate of $10,000 per month.

(ii) Telephone allowance of $4,000 per month.

(iii) Housing allowance of $15,000 per month.”

I have had to rely on the breakdown of his income as Pro Vice-Chancellor because the plaintiff did not submit his letter of elevation to Vice Chancellor which he says happened about the same time because he went there as Acting Pro Vice Chancellor performing the duties of Vice-Chancellor.

While it is not clear why the plaintiff's evidence in the regard is vague, I am prepared to accept, that, as substantive Vice Chancellor, he earned salary and benefits of $3,000,000 which he stated.

This is because his evidence was not challenged in that respect.

In the almost two (2) years that he was either in prison or out of work, he would have earned $6,000,000 in Zimbabwe currency. No evidence was led as to how much this would have been in United States Dollars.

The globular figure claimed is a thumb suck.

In my view, the court has to draw on experience and surmise in the absence of evidence. I find support in adopting that approach from the remarks of GUBBAY JA…, in Minister of Defence and Anor v Jackson 1990 (2) ZLR 1 (S) where he said:

“What is essential is for a trial court to draw on its own experience in making an assessment of damages – an exercise which is necessarily dependent upon some degree of surmise, conjecture, and imagination; for, general damages are not capable of exact arithmetic calculations.”

The remarks may have been made in the context of general damages for bodily injury, but, they have equal application to what this court is called upon to assess.

I have deliberately adverted to loss of income and other benefits to assist put figures on part of the plaintiff's loss. However, they do not encompass all of the damage he sustained.

Having said all that, I now turn to apply the foregoing principles to the two claims.

The plaintiff claims $100,000 for malicious prosecution.

The law on this delictional claim was discussed in the earlier judgment by this court. In short, the delict occurs when the defendant has maliciously, and without reasonable and probable cause, instituted criminal proceedings against the plaintiff.

The damages are designed to compensate the plaintiff for being subjected to unwarranted criminal proceedings, which are, in this jurisdiction, held in public.

During the course of such proceedings, the plaintiff suffers both financial prejudice and injuria in being paraded in public to answer charges. In doing so, the plaintiff loses time and money.

Again, no evidence was led on the financial prejudice he sustained in defending himself during the lengthy prosecution as well as in fighting the conviction and sentence in this court.

I am however of the view, drawing from 'experience' from 'surmise' from 'conjecture' and from 'imagination' that the claim for $100,000 is extremely excessive.

In my view, an award of US$30,000 under this head will meet the justice of the case.

Regarding the claim of US$300,000 for malicious arrest and detention, it should be recalled that the delict occurs when there is no reasonable or probable cause for the allegation of criminal conduct.

The institution of proceedings constitutes an abuse of the right to lay genuine complaints.

In such circumstances, the complaint by the defendant, as has been shown above, is without foundation and intended to cause harm or injury to the plaintiff.

The plaintiff suffered ill-treatment in prison where he endured poor prison conditions and diet. He was taken away from his family and lost his job and other contacts. In fact, the loss of liberty, in its self, is such deprivation of a constitutional right that it cannot be countenanced where the basis for it is malice.

I have related to the financial loss which the plaintiff had to bear over and above all else to show that indeed considerable compensation is called for.

Again, drawing on the factors set out in the authorities mentioned above, including the duty thrust on the court to bear in mind, inter alia, the effect any award may have on future awards in similar cases, and, indeed, economic development or the economic conditions of this country, I have no doubt that the claim of US$300,000 is again excessive.

We live in a small economy where such claims may not be sustainable at all.

Taking into account all the circumstances of the case, I am of the view, that, a third of what the plaintiff claims, will meet the justice of the case. Accordingly, I award US$100,000 under the rubric of malicious arrest and detention.

Finally, I have to deal with the issue of the currency of the awards.

I do not agree with the defendant that the award should be expressed in United States Dollars “but paid in RTGS at a one as to one rate.”

That submission is a product of a misreading of section 54(1)(d) of SI33 of 2019 and sections 20 and 22 of The Finance (No.2) Act of 2019 as well as the judgment in Zambezi Gas (Pvt) Ltd v N.R Barber & Anor SC03-20.

What has to be paid in the local currency at the parity rate are assets and liabilities due immediately before 22 February 2019.

In this case, nothing was due to the plaintiff immediately before that date.

He had filed a claim which was being contested. The court was yet to determine both the issues of liability and quantum.

Accordingly, while the law preludes this court from issuing a judgment sounding in foreign currency, it does not proscribe the grant of damages in foreign currency to be paid at an equivalent RTGS dollar reckoned at the interbank rate at the time of payment.

In the result, it be and is hereby ordered as follows:

1. Judgment be and is hereby entered in favour of the plaintiff against the defendant in the sum of US$30,000 for malicious prosecution and in the sum of US$100,000 for malicious arrest and detention.

2. Interest on both amounts at the prescribed rate from the date of service of summons to date of full payment.

3. The sums of US$30,000 and US$100,000 together with interest thereon shall be paid in RTGS dollars at the inter-bank rate prevailing on the date of payment.

4. The defendant shall bear the costs of suit.

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD and GORDON MOYO
Ruled By: KUDYA J

In Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194…, WATERMEYER JA recognised that the task of estimating the compensation which should be paid for the pain and suffering and permanent disability, in consequence of an accident, was a difficult one. He proceeded to recognize that:“Though the law attempts to ...

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Damages re: Assessment and Evidence of Damages iro Proof of Claim, Quantification and Restitutio in Integrum ito Approach

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE
Ruled By: MATHONSI J

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

HH435-18 : CHIDO MATEWA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: CHIKOWERO J

HMT34-20 : MARILYN BAXTER vs FUNGISAI CHIROCHANGU and RONALD CHIROCHANGU
Ruled By: MWAYERA J and MUZENDA J

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

View Appeal
HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

View Appeal
HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

HB45-11 : DAVID MATSITSIRO vs CHAMUNORWA MUSINDO
Ruled By: KAMOCHA J

Appealed
SC55-24 : JAYESH SHAH vs PROFESSOR CHARLES NHERERA
Ruled By: GWAUNZA DCJ, GUVAVA JA and CHATUKUTA JA

View Appeal
HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH
Ruled By: MATHONSI J

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD and GORDON MOYO
Ruled By: KUDYA J

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Law Portal Zimbabwe

Damages re: Assessment and Evidence of Damages iro Proof of Claim, Quantification and Restitutio in Integrum ito Approach

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE Ruled By: MATHONSI J

View Appeal HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS Ruled By: ZHOU J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL Ruled By: MWAYERA J and MUZENDA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO Ruled By: MWAYERA J and MUZENDA J

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA Ruled By: GOWORA J

HH435-18 : CHIDO MATEWA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY Ruled By: CHIKOWERO J

HMT34-20 : MARILYN BAXTER vs FUNGISAI CHIROCHANGU and RONALD CHIROCHANGU Ruled By: MWAYERA J and MUZENDA J

Appealed SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

View Appeal HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO Ruled By: BERE J

Appealed SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED Ruled By: MAKARAU JA, GOWORA JA and BERE JA

View Appeal HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD Ruled By: MATHONSI J

HB45-11 : DAVID MATSITSIRO vs CHAMUNORWA MUSINDO Ruled By: KAMOCHA J

Appealed SC55-24 : JAYESH SHAH vs PROFESSOR CHARLES NHERERA Ruled By: GWAUNZA DCJ, GUVAVA JA and CHATUKUTA JA

View Appeal HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH Ruled By: MATHONSI J

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD and GORDON MOYO Ruled By: KUDYA J

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Zimbabwe

HH207-13 : MODCRAFT ENGINEERING (PVT) LTD vs TENDA BUSES (PRIVATE) LIMITED and DAMASCUS MUTARE
Ruled By: MATHONSI J

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HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

HH435-18 : CHIDO MATEWA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: CHIKOWERO J

HMT34-20 : MARILYN BAXTER vs FUNGISAI CHIROCHANGU and RONALD CHIROCHANGU
Ruled By: MWAYERA J and MUZENDA J

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

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HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

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HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

HB45-11 : DAVID MATSITSIRO vs CHAMUNORWA MUSINDO
Ruled By: KAMOCHA J

Appealed
SC55-24 : JAYESH SHAH vs PROFESSOR CHARLES NHERERA
Ruled By: GWAUNZA DCJ, GUVAVA JA and CHATUKUTA JA

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HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH
Ruled By: MATHONSI J

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD and GORDON MOYO
Ruled By: KUDYA J