Fanuel Mbirimi v Chester Dhliwayo and Mukumba Brothers (Pvt) Ltd and Insurance Company of Zimbabwe

### Preamble
1
HB 172/25
HC 3030/16
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FANUEL MBIRIMI

Versus

CHESTER DHLIWAYO

AND

MUKUMBA BROTHERS (PVT) LTD

AND

INSURANCE COMPANY OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 15 JULY AND 17 OCTOBER 2025

Absolution from the instance

R Ndlovu, for the plaintiff

G Sengweni, for the defendants

Plaintiff issued summons claiming damages

Payment of the sum of $50 000 being damages for pain shock and suffering

Payment of the sum of $2465-00 being for medical expenses

3000 being for future medical expenses

$10 000 being for loss of amenities

Interest at the prescribed rate on the aforestated amounts.

Costs of suit

The issues for trial were mainly the liability of the defendants and if they are found liable the damages suffered and their quantum.

The trial commenced.

Plaintiff was the only witness for the plaintiff’s case.

Plaintiff’s Case

He told the court that he came to know 1st Defendant when he boarded his bus on 14 August 2016 at about 7pm.  He said that the bus was full and he was a standing passenger.  He said that the bus was speeding and that it was also overloaded because people were shaking and one had to balance themselves and they could not stand without balancing.  He stood in the middle of the bus.  There was a tyre burst, people started screaming.  He only realised himself down with some glasses all over him.

People were now stepping on him while exiting the bus.  He then followed other passengers and exited through a windscreen.  He then checked his arm and blood splashed all over his face.   He removed his T-shirt and used it to wrap the arm to try and stop the bleeding.  He was then taken by an ambulance to hospital.

He said that it’s the tyre burst that made the bus to land on the ground.  He does not know the speed at which the bus travelled.  He was injured on the arm and that resulted in it being amputated.  He lost the arm as a result of the accident.  He tendered the medical report.

He said that he suffered immense pain and he would continue to suffer the pain thus he would need further medication.

He now has a limitation on what he can do physically because of the lost limb.  Under cross-examination he said the bus was speeding because of the manner they were being shaken and the outcry by the passengers.  It was put to him that the accident was caused by a tyre burst to which he replied in the affirmative.  Asked how he then linked 1st defendant to the burst tyre, he said it was because 1st defendant was on the steering wheel.

Questioned on what he had to show for the speeding he said a forensic scientist did a report and confirmed that the bus was speeding and that the police officers who attended the scene would also tell the court that.

There was no re-examination and plaintiff closed his case.

Defendant’s counsel, then applied for absolution from the instance

The application for absolution was made on the basis that firstly, no evidence of liability was placed by the plaintiff before the court.  Secondly that, on the quantum of damages and or their existence no satisfactory evidence was led.

Plaintiff opposed the application for absolution from the instance on the basis that a prima facie case of negligence has been established against the defendants who must be put on their defence to answer his claims.  Plaintiff relied on the case of Mundozi v Chamusi and Anor HH 19-03 which I will deal with right away and distinguish it as an irrelevant authority in this matter for the following reasons:

In that case there was corroboration of the speeding by the defendant, firstly by the witness that plaintiff called and secondly by the defendant himself who admitted that he could not apply brakes as he would then lose control of the vehicle and fall into the ditch.  Thirdly the defendant in that case had already pleaded guilty to culpable homicide meaning he had accepted that he was negligent in the circumstances.

That is a completely different set of facts from this case where there is no evidence at all and no corroboration at all of the seemingly excessive speed that the driver drove at simply because passengers were shaking.  There is no admission by the driver, no conviction, no corroboration by other eye witnesses’ accounts and there is a burst tyre which even plaintiff himself attributes to the cause of the accident under cross-examination.  If plaintiff accepts that the cause of the accident was a burst tyre, how then is it a case of speeding?

In fact the burst tyre throws spanners into the works of plaintiff’s case because in the absence of an expert report to the effect that the burst tyre was tied to the drivers conduct or the owners conduct, then it will be a farfetched claim to build negligence of speeding because people were shaking inside the bus and input that on the aspect of a burst tyre without an expert doing so.  In fact plaintiff admitted under cross examination that the accident was caused by a tyre burst.  That means he reneged on the initial claim of negligence.

Plaintiff should have called an expert to link the burst tyre, the shaking of people, the falling of the bus on the side to the defendants’ negligence because without that nothing or nobody can do any patch work to plaintiff’s case as it stands.

In the declaration annexed to his summons, plaintiff avers that:-

“5. 	On the 12th of November 2016, 1st defendant in the course of his employment with 2nd defendant, drove the later’s bus negligently and consequently caused an accident”

“6.	The 1st Defendant was negligent in that he was speeding resulting in the bus overturning.”

Plaintiff leaves out the aspect of the burst tyre in his pleadings.

At the trial however, plaintiff did not substantiate the negligence at all.  That standing passengers in a bus in motion were shaking and had to balance cannot by any standard be the sole basis for finding that the bus was speeding.  How can standing passengers not balance in a bus in motion?  And at what speed does that occur for it to be found as the basis of speeding?

Again, the burst tyre throws spanners into the plaintiff’s case because if 1st defendant was negligent in speeding and caused the accident, what role then was played by the tyre burst? Which is the reason why plaintiff during cross-examination accepts the burst tyre as a cause of the accident but digresses to say 1st defendant’s negligence derives from the fact that he was behind the steering wheel when the tyre burst.

Whether a case has been made for absolution

It is trite that absolution from the instance may be granted at the end of the plaintiff’s case, if the plaintiff has failed to adduce sufficient evidence upon which a reasonable court might grant judgment in favour of such plaintiff, or the plaintiff has not produced sufficient evidence to establish a prima facie case in other words, a case in which all the essential elements of the claim have been proven.

The test to be applied is whether there is evidence upon which a court, applying its mind, reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.  If the above test is applied, plaintiff must have delivered evidence relating to all elements of the claim.

In the case before me, the plaintiff’s claim hinges on the negligence by the 1st defendant, which would then rope in 2nd defendant vicariously.  There are recognised particulars of negligence in our law, like excessive speed as pleaded by the plaintiff.

Whilst the plaintiff stated without any substantiation that because they were shaking whilst standing as passengers in a bus that meant the driver was speeding, the problem is that a tyre burst and plaintiff accepts during cross-examination that the traffic report gave the tyre burst as the cause of the accident.  If the traffic report gave the burst tyre as the cause of the accident then it did not attribute the accident to any negligence including that speeding.

The tyre burst in my view, in the absence of expert evidence tying it in with proven speeding, or negligence on the defendant’s part, scuttles the averment on 1st Defendant’s negligence.

In this case there is a tyre burst supposedly as the cause of the accident.

During cross-examination when plaintiff is told of the tyre burst which he did not mention at all in his declaration, he then says the 1st defendant is responsible for the accident because he was behind the steering wheel.

That is self-defeating and does not establish a prima facie case of negligence at all against the defendants.  Plaintiff’s counsel submitted that courts are conservative in granting absolution in damages claims and refers to the case of Kadungure v Pervaiz HH 822/22.

However, I hold the view that a more relevant authority in the granting of absolution in damages claims is that of Delta Beverages v Onisimo Rutsito SC 42/13 which was an appeal against refusal of absolution, and in a damages claim and which appeal was upheld.

The court had this to say:

“I would agree that at the end of the plaintiff’s case, before the court a quo, there was no evidence before the court on the state or condition of the bottling equipment used by the appellant.

That there was nothing wrong with either the equipment or the procedures adopted in the manufacturing process.  There was no evidence that the appellant had failed to take necessary precautions during the manufacturing process …..  There was no evidence therefore that could be tested against the objective standards of a reasonable manufacturer -----  It was for the respondent to prove that the manufacturing process of the appellant were deficient in particular respects.”

The Supreme court upheld the absolution from the instance in appellant’s favour.  Similarly in this case we have an averment on the speeding of the bus unsubstantiated by any piece of evidence except that standing passengers needed to balance and the complaint by passengers.  At what speed in a bus does a standing passenger need to balance?  Or is there any stage in the speed of a moving bus that a passenger can stand without balancing?  That standing passengers needed to balance, therefore the bus was speeding is a bare assertion.  It is not evidence satisfactorily adduced to back up a claim of driving negligence.

Even if one were to accept that, such averment could lay a basis for negligence (which view I do not hold) we would still have the issue of the burst tyre, as long as there is no expert evidence to attribute the accident to the driver’s negligence despite the tyre burst or to attribute the tyre burst itself to the driver’s conduct then the plaintiff has not laid any foundation for the basis of the claim against the defendants as the cause of the accident is the burst tyre as matters stand.  If it is the burst tyre, without any expert evidence linking the drivers conduct to the burst tyre then the matter should end there.    There was simply no evidence, prima facie or otherwise to prove anything against the defendants.  It is for these reasons that I will absolve the defendants.

I accordingly grant the application for absolution from the instance with costs.

R. Ndlovu and Company, plaintiff’s legal practitioners

Sengweni Legal Practice, 1st and 2nd defendants’ legal practitioners