At the conclusion of the hearing of this matter in the High Court, the court, inter alia, granted absolution from the instance in respect of the appellant's claim for general damages, future expenses, and replacement value for his motor vehicle.

It is only against that portion of the judgment that the appellant has appealed to this Court.

The facts of this case are as follows:

On 23 July 2006, the appellant was involved in a serious road accident with the respondent at the intersection of Breach Road and Kingsmead Road in Borrowdale, Harare. As a result of the accident, the appellant sustained serious injuries. He was conveyed to Parirenyatwa Hospital whilst in a coma. Thereafter, he was detained in the High Dependency Unit for seventeen (17) days. He spent seven-and-a-half months at St. Giles Rehabilitation Centre. He spent a total of about one-and-half years undergoing hospitalization.

It was accepted, during the trial, that, prior to the accident, the appellant had been active in sport and that he had been in charge of sport and discipline at St Johns College, Borrowdale. In particular, he was in charge of rugby, swimming, hockey, and athletics at the school.

The court a quo found, on the evidence, that the accident was the result of gross negligence on the part of the respondent.

In considering the appellant's claim for general damages, the court a quo found, as a fact, that the appellant will require surgical operations, regular physiotherapy, and medication for the rest of his life. The court also found that he experiences weaknesses of the forearm and arm on the left side and that he will suffer from pain for a very long time.

A report prepared by Professor Kalangu stated that the lower plexus should show good improvement but did not indicate to what extent he was likely to improve. The court was of the view, that, in the absence of evidence from the two doctors who attended to the appellant, the extent of his disability was debatable.

On that basis, the court a quo granted absolution from the instance.

On the question of future medical attention, the court accepted that the appellant will require transport to attend physiotherapy and rehabilitation and that he will require future medical attention. However, the court reached the conclusion that the plaintiff had failed to show how many sessions he would be required to undertake to enable the court to assess the future expenses that he was likely to incur.

On that basis, the court also granted absolution from the instance.

On the question of the replacement value of the motor vehicle, the court a quo came to the conclusion that since delictual damages are calculated as at the time of the delict, the appellant had failed to explain, satisfactorily, the delay between the time of issuance of the summons and the time when quotations were obtained.

In particular, the court was of the view that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

As a result, the court a quo also granted absolution from the instance.

In his grounds of appeal, the appellant has attacked the decision of the court a quo on three bases. These are:

1. That the court a quo erred in failing to consider the evidence placed before it and thereafter to exercise its discretion to make an award for general damages in favour of the appellant.

2. The court a quo erred in failing to consider the evidence placed before it and thereafter in exercising its discretion to make an award for future medical expenses in favour of the appellant.

3. The court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

The appellant seeks an order that paragraph 2 of the order of the court a quo be set aside and that the respondent be ordered to pay;

(a) The sum of US$50,000, being the equivalent of Z$1 billion as at the date of judgment, as general damages together with interest thereon at the rate prevailing in the United States of America from the date of judgment to date of payment in full;

(b) The sum of US$5,000, being future medical expenses together with interest thereon at the rate prevailing in the United States from the date of judgment to the date of payment; and

(c) The sum of US$8,000 being the replacement value of the appellant's motor vehicle.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The first ground of appeal that falls for determination by this Court is whether the court a quo erred in failing to consider the available evidence, and, thereafter, making an award for general damages in favour of the appellant.

The amount claimed as general damages before the court a quo was the sum of Z$1 billion as at the date of judgment. The Z$1 billion claimed represented damages for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life, and shortened life expectancy.

The court a quo delivered its judgment on 16 April 2009, and, in respect of this particular claim, granted absolution from the instance. The basis for that decision was that the remark by Dr Kalangu, in his report, that, “lower plexus should show good improvement”, was imprecise. The court a quo was of the view that it was not clear to what extent the improvement would affect the degree of disability. Further, although the report alluded to the need for a repeat study after six months, no such examination appears to have been undertaken. In view of the medical opinion that the appellant's condition could improve with rehabilitation and treatment, the court concluded that the extent of the disability was debatable, and that, therefore, the appellant had not placed sufficient evidence before the court to enable it to make a proper assessment.

It is correct, as the court found, that no further tests were done to ascertain the degree to which the appellant was likely to recover. The fact that the appellant had sustained very serious injuries from which he could never fully recover was common cause. The court accepted, that, following the accident, he had had to be hospitalized for about one-and-a-half years. The court accepted the report by Dr Kalangu, that, the appellant had sustained “complete paralysis of the left and complete paralysis of both lower limbs” (sic). The radiological investigations had revealed a fracture of the left clavicle, fracture of the spine in C5 and C6 and dislocation of the vertebra in C5-6 associated with spinal cord compression. Dr Kalangu estimated the percentage of disability at 60%. He further found that the appellant will have pain for a long time and he will require physiotherapy.

The court also accepted the report by Professor Meikle, of the Clinical Neurophysiology Laboratory, Harare Hospital, that the appellant had weakness of all the muscle groups in the left arm with no movement in the shoulder and elbow muscles. The Professor found the upper plexus to have been seriously injured with no sign of recovery “at present” but the lower plexus was expected to show good improvement.

Although the Professor recommended repeat studies in six months, as already noted, nothing further appears to have happened after the preparation of that report.

The court a quo found that the accident had had a serious effect on the appellant, who, before the accident, had been in charge of sport at St Johns College, Borrowdale, and had generally been active in short. His condition, after the accident, had also affected his relationship with his daughter, who, it appeared, simply could not understand why her father could no longer engage in the activities he used to.

The court a quo further accepted, as fact, that the appellant will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

It certainly would have helped had the appellant undergone further examination thereafter so that the exact degree of his injuries could have been ascertained. This notwithstanding, the evidence placed before the court, in my view, was sufficient to enable the court to make an award.

As WATERMEYER JA aptly put it in Sandler v Wholesale & Coal Supplies Ltd 1941 AD 194, 199:

“…, it must be recognized that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet, there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The extent of the injuries sustained was substantiated.

The doctors suggested that there was some possibility of improvement but this could only be determined if a repeat study was carried out at a later stage. During the trial, the appellant said nothing about such a repeat study. The court itself did not ask in order to clarify the situation.

The failure to lead evidence on this should not have resulted in the appellant being non-suited.

As stated in The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…, in a case such as the present, a Court does not grant absolution but may tend towards conservatism in assessing the damages. The learned authors state:

“The general attitude of the court has been that if there if evidence upon which an estimate, not unfair to the defendant, can be made, it should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff's behalf. Nevertheless, the failure to adduce such evidence would normally operate to the disadvantage of the plaintiff, in that, in its absence, the court would normally tend towards conservatism in computing the damages.”

In my view, this is the approach that the court a quo should have adopted.

I would agree with the appellant that the finding of absolution in these circumstances resulted in an injustice.

It is not uncommon, in claims for general damages, for a plaintiff to claim, and a Court to award, individual damages for pain and suffering, disfigurement, loss of amenities of life, and shortened life expectancy: see The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The finding of absolution must therefore be set aside.

The amount claimed, as at the date of commencement of the trial in October 2008, was the sum of Z$1 billion.

Judgment was given six months later, in April 2009.

At the time, the country was gripped by a hyperinflation environment which quickly eroded the value of money. In February 2009, however, the multiple currency system was introduced. Whilst the Zimbabwean dollar remained legal tender, it is a fact that transactions in the local currency ceased effectively rendering the Zimbabwean dollar valueless.

At the time that the court was asked to make its determination, the appellant was seeking the sum of Z$1 billion. It is that claim that should have been considered by the court a quo.

In terms of section 6 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009 financial institutions were instructed to accept, between 2 February 2009 and 30 June 2009, Old Zimbabwean currency at the rate of one trillion dollars for one dollar of the new currency system.

In terms of section 8 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009, debts incurred before 2 February 2009 were deemed to have been incurred, entered, created, or transferred in terms of the old currency system and were to be settled, discharged, or liquidated in terms of the old currency system provided, however, that, on or after 1 July 2009 every debt was to be settled, discharged, or liquidated in terms of the new currency system only.

In the definition section, “debt” includes anything which may be sued for or claimed by reason of any obligation arising from statute, contract, delict, or otherwise.

By operation of the law, therefore, the claim by the appellant, for general damages, in the sum of Z$1 billion stood to be dealt with in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations.

The one billion dollars claimed under the old currency equated to a fraction of a cent under the new currency system.

Considering the extent of the injuries sustained by the appellant, the claim for damages in the sum of Z$1 billion may not have been an unreasonable sum at the time of commencement of the trial proceedings. However, the law, through the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations (Statutory Instrument 6/09), has converted what would otherwise have been a substantial claim to a most trivial one.

The result is obviously a most unfair one and the appellant, and the general public, would be excused for thinking that there is something seriously wrong with the law or at least the way it works.

The legislature should have been alive to the obvious injustices that were to follow especially because, on 1 February 2009, the Government introduced the multiple currency system under which it became possible to enter into transactions denominated in other currencies: see section 17 of the Finance (No.2) Act 2/09.

The Finance (No.2) Act 2 of 2009 regularized the introduction of other foreign currencies as legal tender with effect from 1 February 2009.

In terms of clause 8 of the agreement, the first respondent, Delta, appointed the services of the applicant, Pioneer, to distribute and deliver products on its behalf to various destinations.

In order to perform its obligations under the agreement, Pioneer undertook to supply vehicles to Delta for use in the distribution aforesaid. To that end, Pioneer had to make available to Delta twelve mechanical horses which would be used to draw thirty-four trailers, these being supplied by Delta.

The agreement also provided for the supply of additional horses, by Pioneer, on an ad hoc basis as the exigencies of the situation would have demanded.

As sometimes happens, the parties had a falling out.

The agreement, in terms of clause 18 thereof, provided for the settlement of disputes through an arbitration process.

In due course, the second respondent was appointed as arbitrator to the dispute and the matter referred to him. The parties were called before him, and, on 16 January 2010, he issued an award.

The applicant has, through these proceedings, brought an application to have the award set aside by this court in terms of Chapter VII, Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15]. The applicant also seeks costs against the first respondent.

The founding affidavit has been deposed to by a John Groves. He states that he is employed as a Managing Director by the applicant and that he is authorised to depose to the affidavit.

He states therein that the application was being brought to court in accordance with the provisions of section 2 of Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15].

The dispute is centred around the effect to be given to clause 9(f) of the agreement, in terms of which, upon termination of the agreement, Pioneer was supposed to return the trailers to Delta, and such return to be in “good working condition” and order fair wear and tear excepted.

The deponent states that, on 26 September, Delta commenced arbitration proceedings in terms of a Statement of Claim filed of record. Pioneer opposed the claim and the matter was set down for hearing before the arbitrator. Both parties adduced viva voce evidence.

According to the deponent to the affidavit the crystal issue before the arbitrator was the duration of the agreement.

The arbitrator found that the claim by Delta had not prescribed at the time that it submitted the dispute to arbitration. The deponent contends, therefore, that the arbitrator acted outside the enabling provisions of the agreement.

He contends, further, that the finding by the arbitrator that the agreement between the parties terminated on 30 November 2005 was not rationally linked to either the evidence adduced by the parties or submissions made by the same on the papers or during the hearing. He contends, further, that, in finding as he did, that the agreement terminated on 30 November instead of 31 December, as provided for in clause 2 of their agreement, the arbitrator had created a new contract for them.

In addition to the above, the applicant contended that the mandate of the arbitrator was limited to the duration of the agreement, and that consequently he was supposed to ascertain the obligations of the parties as at the date of termination of the agreement.

However, contends the applicant, the arbitrator seemed to have extended the applicant's obligations under the contract beyond the lifespan of the agreement.

It is further contended that the applicant's liabilities ought to have been ascertained as at the date.

According to the applicant, the award is not limited to the termination date, as found by the arbitrator, that is 30 November 2005, but goes beyond that. Therefore, the applicant contends, even on his own version, the arbitrator has acted outside the provisions of the contract. This, he suggests, is contrary to the Zimbabwean substantive law on the privity of contracts and therefore contrary to public policy.

The deponent also avers, that, by awarding specific performance in favour of a party who had, in terms of the contract, bilateral obligations which it had itself not performed, and was not in a position to perform, the arbitrator had unjustly enriched one of the parties at the expense of the other contrary to the positive law in Zimbabwe regarding bilateral obligations and further that this was contrary to public policy.

In the event, the applicant prayed for the setting aside of the arbitral award.

The first respondent has opposed the application. It has raised a number of points in limine.

(i)...,.

(ii) In relation to the second point in limine, the first respondent contends that clause 18 of the agreement provides that the parties irrevocably agreed that the decision of the arbitrator in any arbitration proceedings brought under the agreement would be binding upon each of them and that this was in respect of any dispute arising out of or in connection with the agreement including any dispute regarding its existence, validity, or termination.

Accordingly, the first respondent contends, the parties are bound by the provisions of clause 18 of the agreement, and, consequently, the applicant cannot have recourse against the award by virtue of these proceedings.

The first respondent contends, further, that, assuming that the parties do have recourse against the award, notwithstanding the provisions of clause 18, the application filed in casu does not disclose a cause of action as contemplated in Chapter 7 Article 34 of the First Schedule to the Arbitration Act as modified by S.I.208 of 1996.

The first respondent contends that, in terms of Article 34(5), it is only if the award was induced or effected by fraud that it can be said to have been contrary to public policy. However, so the argument goes, the applicant has made no such allegation. Accordingly, so contends the first respondent, there is no cause of action exhibited on the papers.

A party to an agreement which provides for relief by way of an award by an arbitrator has a right to have the award set aside as provided for in Article 34. It has been given legislative imprimatur under the Arbitration Act, and the respondent has not pointed out any authority which allows parties to an agreement to override provisions that have been spelt out in an Act of Parliament.

In this connection, I would want to quote from comments I made in Recoy Investments (Pvt) Ltd v Tarcon (Pvt) Ltd HH159-11 to the following effect:

“In my view, the respondent has a mis-apprehension of the law. The court has the jurisdiction to hear the matter where none of the parties has applied for a stay of the proceedings and a consequential referral to arbitration. Article 8 is clear and admits of no ambiguity. I am bolstered in this view by dicta from CLOETE JA in PCL Consulting (Pty) Ltd v Tresso Trading 119 (Pty) Ltd 2009 (4) SA 68 at 71G-72C to the following effect:

'The mere fact that parties have agreed that disputes between them shall be decided by arbitration does not mean that court proceedings are incompetent. If a party institutes proceedings in a court despite such an agreement, the other party has two options:-

(i) It may apply for a stay of the proceedings in terms of section 6 of the Arbitration Act 42 of 1965; or

(ii) It may, in a special plea (which is in the nature of dilatory plea), pray for a stay of proceedings pending the final determination of the dispute by arbitration.'

The definitive statement of the law in this regard is to be found in Rhodesian Railways Ltd v Mackintosh 1932 AD 359 at 370-371 where WESSELS ACJ said:

'All that section 6(1) lays down is that you cannot adopt the cheaper and speedier procedure therein provided when once you have delivered pleadings or taken any other step in the proceedings. If you have taken any step in the proceedings, then you can no longer adopt the speedier and less costly procedure of applying to the court to stay proceedings but you must file your pleadings in the ordinary way. In pleading, however, you can raise the defence that the case ought to be decided by arbitration, this can be done by a special preliminary plea.'”

The High Court, being a superior court of jurisdiction, has the power to hear any matter and any party unless its jurisdiction has been specifically ousted by statute.

In addition, Article 8 of the Arbitration Act permits the parties who have submitted a dispute for arbitration, and which process has now been brought before this court for the setting aside of any award resulting from such process, to apply to the court for a stay of those proceedings.

The powers granted to the court under such application are as follows:

“Arbitration agreement and substantive claim before court

(1) A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests, not later than when submitting his first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed.

(2) Where proceedings referred to in para (1) of this article have been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”

A reading of Article 8 above makes it clear that the court must stay proceedings upon the application of a party who wishes that the matter proceed to arbitration for resolution on the dispute. That, in my view, appears to be the only reason for the court's jurisdiction to be temporarily suspended.

Once the parties have referred the dispute to arbitration, and an award has been made, the jurisdiction of the court to decide on the award is unfettered.

This court is however seized with an application for the setting aside of an arbitral award. I therefore hold that this court has the jurisdiction to determine this matter on its merits.

Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15] allows for the setting aside of an arbitral award by this court in very restricted circumstances.

In casu, the applicant contends that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or that it contains decisions or matters beyond the scope of the submission to arbitration and that the award itself is contrary to the public policy of Zimbabwe.

Clause 18.1 of the service contract made a provision for the reference of any dispute thereunder to arbitration and that such arbitration proceedings would be final and binding upon the parties herein.

The exercise of power by the High Court, under Article 34 of the Arbitration Act, has already been discussed in the case of Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) where GUBBAY CJ said the following:

“Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching in its defiance of logic or accepted moral standards that a sensible and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.

Although no moral turpitude whatsoever attached to the conduct of the arbitrator, I am satisfied that his award bears the adverse characteristics I have referred to. It is my belief that, in the circumstances pertaining, the award made results in so palpable and substantial an injustice to ZESA that for this court to uphold it would be to sanction a conflict with the public policy of Zimbabwe.”…,.

The principle enunciated in this judgment was confirmed in Delta Operations (Pvt) Ltd v Origen Corporation SC86-06.

It is therefore trite, that, under the law, the court is empowered to set aside an arbitral award if the applicant who wishes to have it set aside can establish that the award is in conflict with the public policy of Zimbabwe.