Joseph Marshall Stuart v National Railways of Zimbabwe

### Preamble
1
HB 158/19
HC 1777/04
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JOSEPH MARSHALL STUART

Versus

NATIONAL RAILWAYS OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 13 FEBRUARY 2007, 11 JANAURY 2011, 7-8 MARCH 2011, 10-11  JANUARY 2011, 15 NOVEMBER 2012, 20-24 APRIL 2015, 17 SEPTE4MBER 2015, 16-17 APRIL 2018, 20-22 APRIL 2018, 26 FEBRUARY & 24 OCTOBER 2019

Civil Trial

V. Majoko for plaintiff

A. Muchadehama for defendant

NDOU J:	The plaintiff issued civil summons in May 2004 sounded in Zimbabwe dollars.  The plaintiff was claiming from the defendant;

$248 292,38 for past medical expenses

$1 292 460,00 for future medical expenses

$6 000 000,00 for psychological injury, loss of general health and loss of amenities of life.

$5 000 000,00 for contumelia, humiliation and defamation

$115 136 000,00 for loss of pension benefits

$411 300 774,00 for loss of earnings

Interest on all the above at the prescribed rate from the date of service of summons to date of full payment.

Costs of suit.  These claims were later amended from the moribund Zimbabwe dollar to the United State dollar.

The table below reflects the original changes and the amended claims and the ratio of US dollar to Zimbabwe dollar.

The ratio is not consistent and I will revert to this issue later.

The salient facts of this long and winding case are the following:

The plaintiff was employed by the defendant the National Railways of Zimbabwe (“NRZ”) from March 1977.  He was retired on medical grounds having been found unfit to remain in service.  When he was retired he was a conductor and aged 49 years old.  He was due to retire at the age of 60 years on pension.  There is no evidence led that before 2000 the plaintiff’s health was of concern to the parties.  The only evidence led of plaintiff’s ill-health as a result of which he was retired is traced to an incident on or about September 2000.

On the fateful day the plaintiff was on duty as a conductor on a train from Victoria Falls to Bulawayo.  Along the way, before the train reached Bulawayo, auditors, S. Chitekedza and M. Sibanda boarded the train and were carrying audit duties.  Neither of the auditors was called as a witness.  Whatever the auditors discovered came through the testimony of the defendant’s sole witness, Misheck Matanhire the defendant’s Director of Corporate Affairs.  The auditors came across a passenger at Guswini whose ticket had overridden.  He claimed to have destined for Bulawayo.  Therefore endorsed on the ticket was for a destination before Bulawayo.  The passenger, was taken to the plaintiff by the auditors and the plaintiff was asked to respond to the passenger’s claim that the passenger had paid the correct fare but been issued with a ticket for a lesser fare.  The plaintiff denied understating any fare and requested that the passenger be given time to look for the correct ticket.  When the train arrived in Bulawayo the passenger was allowed to disembark before this issue of his possible overriding was resolved.  In December 2000 charges of fraud were preferred against the plaintiff.  The charge arose from the above-mentioned issue.  The essence of the charge was that plaintiff collected a higher fare than what he receipted and converted the difference of $108,00 to his own use.  The plaintiff was suspended from work to allow for investigations.  A hearing was held chaired by Mr Matanhire.  After the hearing the plaintiff was found guilty and the penalty was dismissal.  The passenger was not called as a witness in the hearing.  Dissatisfied with the finding that he was guilty the plaintiff appealed to the defendant’s general manager.  His appeal was unsuccessful and his conviction and sentence were confirmed.  Still dissatisfied with his conviction and sentence the plaintiff sought redress from the High Court.  There he faired better and the proceedings were eventually set aside and he was reinstated.  The defendant, under the hand of Mr Matanhire, wrote a letter to the plaintiff dated 29 January 2003, apologizing to the plaintiff for the mental anguish the charges against him had caused him.  Notwithstanding this apology the plaintiff was eventually retired on medical grounds.

Three witnesses testified in support of the plaintiff’s case i.e. the plaintiff himself, the clinical psychologist Dr Anna Szewczyk and Stanley Mbambo from NRZ Human Resources Department.

The plaintiff evinced that the above allegations of fraud that the defendant levelled against him caused him mental anguish.  He stated that the disciplinary hearing against him conducted by Mr Matanhire humiliated him.  When he was dismissed a notice that a conductor had been dismissed was placed and circulated in a general notice.  Although he was not named in the notice it would have been known, since the conductors were few, to whom the notice referred to.  When he sought to meet the defendant’s general manager to prove his innocence, he was denied that access by the defendant’s security details who bodily carried him away from the defendant’s premises.  He was barred from accessing the defendant’s premises and there was a security alert on him as if he was a deranged or dangerous person.  While he was busy trying to prove his innocence he was served with a notice that the loan on his house was due and foreclosure was threatened.  He had accessed a loan from the defendant to buy the house.  His marriage broke down and he had to endure a divorce.  As far as his individual claims the following material facts are discernible.

Medical expenses (past):	This claim relates to medical expenses actually incurred by the plaintiff in seeking medical treatment.  In his evidence, the plaintiff said that he was still under medication and spent money twice a week consulting a doctor.  He conceded that he was under the Railmed Medical Aid of NRZ employees.  Under cross-examination he said he was ill and he did not exactly know for what period the amount of Z$248 292,38 related to.  The plaintiff said that copies of receipts of receipts were obtained from Railmed.

Future medical expenses:	It is beyond dispute that this claim was filed on 20 May 2004.  The claim was for five years’ medical needs.  When the trial commenced in February 2007, part of this claim seemed to be no longer futuristic.  Be that as it may, the plaintiff said that he spent certain monies on medication.  He, however, admitted that during this period he was still covered by Railmed Medical Aid and that subscriptions were being deducted from his pension.  When .asked to justify his claim for future medical expenses the plaintiff said that he took tablets, he cried and felt like committing suicide.  He felt he could not talk to anyone.  He would sit at home, wake up and go to town.  This evidence seems to relate to period before he was treated by Dr A. Szewczyk for post traumatic disorder arising from wrong treatment at his work place.  The latter last saw the plaintiff in January 2006 and she opined that his condition had stabilized.  The plaintiff was unable to put any figure to his claim for future medical expenses, neither was he able to state the period it covered.

Psychological injury, loss of general health, loss of amenities of life: The plaintiff in his testimony generally articulated the claims under this head.  Plaintiff explained the amenities of life that he had lost as a result of defendant’s conduct.  He testified about his sexual limitations and loss of marriage opportunities caused by this delict.

Contumelia humiliation and defamation:	According to the plaintiff, he was charged with allegations of fraud involving $108 from a passenger in the train as alluded to above.  Misconduct allegations were lodged against him.  He was initially dismissed but the dismissal was later reversed and he was then retired on medical grounds.  He referred to certain occurrences in the matter to evince contumelia, humiliation and defamation.

Loss of pension benefits:	In his evidence plaintiff said his claim was based on salary he had been getting in 2003 and projections that he would have retired in the year 2014.  It is beyond dispute that after retiring on medical grounds, the plaintiff is on pension including National Social Security Authority benefits.  In his testimony the plaintiff conceded that he was on pension.   From his evidence it is not clear how he arrived at the actual figure that he is claiming.

Loss of earning:	In his declaration the plaintiff says the earnings comprise of a monthly salary fixed monthly overtime, annual bonus meal allowance, cost of living allowance, transport allowance and medical subsidies.  The plaintiff has not clearly stated whether the claims are based on delict, breach of contract or labour (i.e wrongful dismissal).  Be that as it may, it is beyond dispute that the plaintiff was off-sick from 15th February 2002 to 31st October 2002.  Because of this, the defendant, with the concurrence of the plaintiff, convened a medical board to determine the plaintiff’s suitability to either continue employment, be assigned other duties or retired.  The medical board determined that the plaintiff be retired on medical grounds, a decision plaintiff agreed with.  The legal issue here is whether plaintiff having so agreed to be retired on medical grounds, will still be entitled to a claim for loss of earning.  Although the plaintiff called a witness from the defendant’s Human Resources Department, Mlambo he did not address this issue of the plaintiff entitlement to claim loss of income after agreeing to be retired on medical grounds.  All that Mlambo said is that if the plaintiff had worked until his retirement age he would have earned $47 982,78 minus the statutory deductions.  The defendant called one witness to testify one, Misheck Matanhire.  He is the Director of Corporate Affairs and he features prominently in this case.  He presided over the hearing that found the plaintiff guilty of misconduct and recommended his dismissal from employment.   When the plaintiff was re-instated as alluded to above, he was the one who wrote a letter of apology on behalf of the defendant on 29th January 2003.  In his letter he apologised for “the mental anguish” that the charges had caused prior his re-instatement.  He was cross-examined in detail on how he allegedly humiliated the plaintiff during the course of the disciplinary hearing.  It was put to him that he ill-treated the plaintiff and details thereof were canvassed with him under cross-examination.  Instances of such ill-treatment were highlighted.

Assessment of evidence and the law

I am satisfied that the plaintiff gave a detailed and credible account of what transpired in this matter.    He gave credible account of the effect the charge of defrauding had on him.  He had worked for the defendant for a period of thirteen (13) years for the defendant without incident and then came the accusations and then came stress and depression.  There is no record or evidence led to suggest that prior to the fraud charges plaintiff’s health was a cause for concern.  The plaintiff’s condition is attributable to the above accusations.  Human inclination is that Mr Matanhire would want to maintain that there was no wrong in what he did, but there was.  Notwithstanding the letter of apology he crafted on behalf of the defendant referred to above, in these proceedings he justified that the plaintiff was guilty of the charge.  This is the danger of using a witness who had initially found the plaintiff guilty.  The defendant was blowing hot and cold on the issue of the plaintiff’s guilt.  This conduct shows insensitivity on the part of the defendant.  The plaintiff himself said he felt humiliated and embarrassed and his dignity violated.  The charge hung over his head for months and he was even dismissed although later re-instated, but the same charge was once more preferred against him.  The effect on the plaintiff was also confirmed by testimony of the clinical psychologist Dr Szewczyk.  She said the plaintiff consulted her after 2000 after a referral from Mr Bloomberg a clinical psychologist.  She diagnosed him as depressed and suffering from trauma and distress.  It was her evidence that the plaintiff was stressed and suicidal.  Prior to the accusation against him he had no history of depression.  He remained her patient for some time and she had no doubt that the stress disorder and depression he suffered was the result of the accusations of fraud levelled against him, which must have hurt him deeply to the point he could not face the world.  It was not only Dr Szewcyk who formed the opinion that the plaintiff was depressed.  Dr J. Moyo and Dr Bloomberg had made the same diagnosis and had treated him for depression.  It is Dr Moyo who opined that on account of such depression the plaintiff had become unfit to continue work.  Although at some stage the defendant’s suggestion was that the plaintiff was malingering to avoid disciplinary hearings, the medical board’s finding, that the plaintiff be retired on medical grounds was accepted by both parties.  After re-instating the plaintiff and apologizing for causing him mental anguish, the defendant had no reason to persist that the plaintiff is guilty.  The only justifiable inference from the defendant’s conduct is that it was actuated by malice in the sense of being driven by an improper or indirect motive - Bande v Muchinguri 1999(1) ZLR 476 (H).  The ill effects of this treatment resulted in the plaintiff suffering post traumatic stress disorder.  In such cases the plaintiff is entitled to compensation for contumelia for personal indignity and humiliation – Karimazondo & Anor v Minister of Home Affairs 2001 (2) ZLR 363 (H); Ramakulukusha v Commander,  Venda National Force 1989(2) SA 813 (VSC) and Brown v Hawkes [1891] AC 1Q 718.

I now propose to deal with the claims in turn.  It is trite law that in terms of the “once and for all” rule, generally a plaintiff must claim in one action all damages, both already sustained and prospective, flowing from one cause of action – Cape Town Council v Jacobs 1977 AD 615 and Coetzee v SA Railways & Harbors 1933 CPD 565.  The purpose of this rule is to prevent a multiplicity of actions based upon a single course of action and to ensure that there is an end to litigation – see also Customs Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A).  In this case it appears to me that the cause of action is one.  Not surprisingly the plaintiff made one claim under different heads.  The approach is correct.

In his submissions, Mr Majoko for the plaintiff, briefly referred me to the res inter alios acta.  In other words he submits that “even if Railmed paid plaintiff’s medical bills, plaintiff is entitled to recover the cost from the defendant because those payments were res inter alios acta”.  He relied on the South African case of Du Randt v Eriksen Motors (Welkom) Ltd 1958 (3) SA 570 (OPD).  In that case at p 572 C and other cases from the jurisdiction it is trite law that the legal remedy afforded by the Aquillan action is no longer punitive but a “negative remedy aiming at a readjustment of the economic disturbances suffered by the victim of the wrong.”  (van der Heever Acquillan Damages at p7).

“The appellant should therefore not be allowed to receive a penalty, but his remedy should be confined to the damages which he has actually suffered (Sandilands v Tompkins, 1912 AD 171 at p 180), this being so the question may be asked ‘why should appellant be allowed to receive the amount of his damages already recouped from a collateral service?” – see also Sanlam Versekennsmpy v Bylevedt 1973 (2) SA 146 (A) at 153C-D.

See also Mungate v City of Harare & Ors HH-328-16.

In short, the res inter alios acta is usually referred to as the collateral source rule.  According to this rule matter which are collateral or res inter alias acta should not be allowed to mitigate the quantum of damages awarded to the plaintiff.

Another rule applicable to the facts of this case is that the plaintiff has to prove on a balance of probabilities hat he suffered damage, the extent of such damage and what amount of compensation he should be awarded in respect thereof – Sekgota v SAR & H 1974 (3) SA 309 (A) and Ngubane v SA Transport Services 1991 (1) SA 756 (A) at 785.  See also Law of Damages – P J Visser & J M P Potgieters 435-6.

Medical expenses

On medical expenses, the plaintiff is claiming both past and future expenses.

Past expenses – these are special damages and are capable of direct proof because the expenses have already been incurred i.e. damnum emergens.  It is possible to determine past medical expenses with greater certainty than future medical expenses.  These expenses may usually be established upon reasonable inquiry.  Generally, special damages must be strictly proved – Mayisva v Commercial Union Fire and General Insurance Co. Ltd & Anor 1984 (2) ZLR 181(H) and Mdlongwa v Ngwenya HB-54-13.  It is trite law that where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, or 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 – Aaron’s Whale Rocker Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (c). Ebrahim v Pittman NO 1995 (1) ZLR 179 (H) and Mbundire v Buttress 2011 (1) ZLR 501 (S).  In the Mbundire case it was further held that if there is evidence upon which an estimate not unfair to the defendant can be made, the court should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff’s behalf.  Those deficiencies would normally operate to the disadvantage of the plaintiff in that they court would normally tend towards conservatism in computing the damages.

I now proceed to apply these legal principles to the facts of this case.  In casu the plaintiff claimed a specific amount (i.e Z$248 292,39) in the summons.  Under cross-examination this is what he was asked and how he answered –

“Q        -	Your summons you were claiming medical expenses of Z$248 292,38?

A	-	I would ask medical first.

Perhaps this is what I have spent really

Q	-	How did you arrive at this figure?

A          -	I got the break down from Railmed where they keep our records.

Q	-	Where is the breakdown?

A           -	I don’t think I have a copy of it Sir but it did come from Railmed it should be somewhere in the file.

Q	-	So you have nothing to show for this breakdown?

A         -	Well what that figure that’s shown there was based on that thing from Railmed and it can be found somewhere because there were many copies made.  This could be the one.”

Q           -	It suggests that these amounts were actually paid by the Railways?

A           -	Yes but that’s my dues, that is my money I paid to Railmed and Railmed pays the debts on my behalf.  I am a member of Railmed.  The money that Railmed paid the debtors is actually deducted from salary …

Q        -	And part of the subscriptions are actually paid by the NRZ.  What is the percentage that NRZ pay.

A         -	I don’t know.  With me it was always there in the pay slips how much I paid monthly …

Q         -	The doctors that you consulted, none of them asked for a shortfall payoff?  They did not ask you to make additional payments in addition to what they had been paid by Railmed?

A        -	No as long as they got their full amounts there is no need to ask me to top-up …

Q         -	And for which period was this payment for by Railmed?

A         -	It is hard to say so because I had not looked at that thing for a long time …

Q        -	So this is why I am saying there are no dates, it is not clear when the services were rendered?

A       -	This is the print that they gave me.  I don’t type this, this was done by Railway if by 2007 they are already talking of 2017, I don’t know how they did that.

Q         -	 I am saying that document does not even show the date you received the service.  What treatment was given it is not clear.

A         -	Then there is payment at the end.

Q         -	So it is not clear what these figures relate to in respect of this period?

A          -	This is what when I asked they said it was the money that was spent in that period in total …”

From the foregoing it is clear that the computation of the past medical expenses was done from information provided by Railmed.  It is also clear that this is a contributory medical aid scheme, although the percentages contributed by the employer and employees were not produced.  After amendments the figure was denominated in United States currency at         US$2 000,00.  There are deficiencies in the computation of the amount of damages.  From the time of the issuance of summons to date the Zimbabwean economy has been fragile and unstable on account of factors beyond the plaintiff’s control.  Having taken all factors into account I hold the view that the amount of US$2 000,00 is reasonable conversion of the amount originally demanded by the plaintiff.  I arrive at this figure having regard to the state of the economic development and current economic conditions of the country – Sadomba v Unity Insurance Co. Ltd and Anor 1978 RLR 262G, Min of Home Affairs v Allan 1986 ZLR 263 (S), Biti v Min of State Security 1999 (1) ZLR 165 (S) and Muzeya NO v Marias & Anor HH-80-04 (see also Mair v Geneal Accident Fire & Life Ass Corp 1970 (3) SA 25 (RA) at 29H).  The amount granted above is a fair compensation in the eyes of prevailing Zimbabwe society – Innes v Visser 1936 WLD 44 at 46.  This is a dispassionate and neutral value which society at large on the basis of prevailing money values in our society would give it.  The Quantum of Damages Vol 1 Fourth Ed Corbatt and Gauntlett p 5.

Future medical expenses

It is trite that it is necessary for the plaintiff to establish that as a matter of probability these expenses will need to be incurred and to show what the amount of the expenses is likely to be – Burger v UNSBIC Ins Co 1975 (4) SA 72 (W) and Blyth v Van den Heever 1980 (1) SA 191 (A).

As alluded to above, the plaintiff is claiming future medical expenses for a period of five years from 20 May 2004.  According to the clinical psychologist Szewczyk she started seeing the plaintiff in January 2001.  They had a couple of months, at least six months with a session once weekly.  After July 2000 she saw the plaintiff once a month for a session.  This went on until December 2001.  They carried on until the beginning of 2006 when the sessions stopped because he was relatively functioning then.  He had basically started being motivated but still depressed with moments of crying.  She said he had become more positive thinking about his future.  Thereafter she saw him when she was called to testify in 2007.  What the above evidence shows is that at some point in 2006 the plaintiff’s condition had stabilized.  The payment for those sessions were covered by the medical aid until 2006.  The evidence from Railmed seems to suggest that the documentary proof of payment covered those sessions.  Thereafter, there were no further medical expenses proved by the plaintiff.  In the circumstances, this claim has not been proved.

Psychological injury, general health and loss of amenities of life

These heads are under what is commonly referred to as bodily injury.  This is an infringement of physical integrity, generally some injury to or impairment of a person’s physical organism or general health.  It encompasses shock, pain, suffering, disability, disfigurement and loss of amenities – Santam Ins Co Ltd v Paget 1981 (2) SA 621 (ZA) and Bester v Commercial Union Versekerigsmpy 1973 (1) SA 769 (A).

From the pleadings and evidence adduced by the plaintiff it appears that the issues to be determined are confined to psychological injury and loss of amenities of life.  The manner in which this matter was handled by the defendant reduced the plaintiff to an emotional wreck.  It took the intervention of a clinical psychologist over a period of four years to stabilize his condition.  The plaintiff had to undergo several sessions before he attained the said stability.  The frequency of such sessions has been highlighted above.  On the loss of amenities of life the plaintiff testified that he lost sexual satisfaction resulting in the collapse of his marriage.  He is unable to initiate and sustain any post divorce relationship.  I think the sum of US$1 500 claimed meets the purpose of justice of the case – Muzengo v Marias supra, Gwiriri v Highfield Bag 2010 (1) ZLR 10 (H), Min of Defendce & Anor v Jackson 1990 (2) ZLR 1 (SC), Chinembiri & Ors v Ncube & Ors HH-55-14 and Nyandoro v Min of Home Affairs & Anor 2010 (2) ZLR 332 (H).  Using the ratio of US$1 : Z$124 he could have asked for more.  The amount of US$1 500 is reasonable compensation.

Contumelia, humiliation and definition

The defendant accused the plaintiff of an act of dishonesty in carrying out his duties as train conductor.  As alluded to above, the plaintiff was initially found guilty and dismissed for the offence.  After his protestations he was found not guilty and the defendant apologised.  Up to the time of this trial several years later the defendant had not resuscitated the matter.  I am satisfied from the evidence that the plaintiff was defamed by the defendant’s conduct.  This is a grave defamation because the plaintiff was a long-serving member of the train staff.  The conduct of the defendant from the time of publication of the defamation until the time of assessment is relevant – Sachs v Voortrkkerpers Bpk 1942 WLD 90 at 120.  In casu, even during the cross-examination of plaintiff during this hearing the defendant’s counsel insisted that the plaintiff was guilty notwithstanding that the defendant had withdrawn those allegations and apologised.  In the circumstances the apology is not genuine.  This conduct is aggravatory. – Schoeman v Potter 1949 (2) SA 573 (T) at 575.  Using ratio of US$1 : Z$124 the plaintiff’s  claim of US$10 000 is reasonable.  In the circumstances amount of US$10 000 is reasonably appropriate.

Loss of pension benefits

In this case the plaintiff was retired on medical grounds.  He is on pension.  Strictly speaking he did not lose his pension.  Even during his testimony he confirmed that he was still in receipt of his pension benefits.  What I can discern from his testimony is that the pension that he receives has been grossly affected by the disease of hyperinflation and the unfavourable state of the economy.  This state of affairs affects everyone i.e those in employment and those on pension.  His position is not dissimilar from other pensioners.  He has therefore, failed to prove this head.

Loss of earnings

It is common cause that the plaintiff had lawfully and voluntarily retired on medical grounds.  In the circumstances the plaintiff cannot claim loss of earnings.  The plaintiff cannot receive his pension and at the same time also receive damages for loss of earnings for the same period.

I will now revert to the difficult issue of the rates used to convert the Zimbabwe dollar to the United States Dollar as alluded to above.  The plaintiff used different ratios for the different heads.  There is no rational explanation proffered for this approach.  In my humble view, I stand guided by what the court stated in the Mbundire case supra.  Although the facts are not substantially similar, I think the principle stated therein should guide me in this difficult issue of the conversion.  There is a conversion here that is not unfair to the defendant.  For the incurred medical expenses the plaintiff used the ratio of US$1 : Z$124.  In my view this is a reasonable ratio that should be applied to all the heads.  The defendant will not be adversely affected because in the other heads the plaintiff has now drastically reduced the United States dollars that he is claiming.  In the end the defendant is not prejudiced by the adoption of the US$1 : Z$124.  This is a matter between parties domiciled and resident in Zimbabwe.  On account of policy changes over the years it seems to me that in order to do justice I have to make the order in the United States dollar as per the last amendment granted.  For practical and legal considerations I will make the order payable in local currency applicable on the day of payment.  In this regard I have considered the provisions of section 22 of the Finance Act (No. 2), Act No. 7 of 2019 and Statutory Instruments 33 and 142 of 2019.

From the foregoing it is accordingly ordered that the defendant pays the plaintiff the following damages:

Past medical expenses	  - US$2 000,00 payable in RTGS$ at the interbank rate applicable on date of payment.

Bodily injury – loss of amenities of life – US$1 500,00 payable in RTGS$ at the interbank rate applicable on date of payment.

Contumelia, humiliation and defamation – US$10 000,00 payable in RTGS$ at the interbank rate applicable on date of payment.

The defendant to bear the costs of suit.

Majoko & Majoko, plaintiff’s legal practitioners

Mbidzo, Muchadehama & Makoni, defendant’s legal practitioners