Brighton Ndlovu v Debshan (Pvt) Ltd and Judah Mpofu

### Preamble
1
HH 362-2012
HC 3670-2010
BRIGHTON NDLOVU
versus
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BRIGHTON NDLOVU
versus
DEBSHAN (PVT) LTD
and
JUDAH MPOFU

HIGH COURT OF ZIMBABWE
MUTEMA J
HARARE, 14 JUNE 2012

Civil Action

A.Moyo for the plaintiff
T. Mpofu for the 1st defendant

MUTEMA J: The plaintiff in this case issued summons claiming US$78 000.00 against the two defendants jointly and severally the one paying the other to be absolved on 1 June, 2010. The cause of action, as gleaned from the plaintiff’s declaration, is premised on the fact that the second defendant (a farm guard), acting within the course and scope of his employment with the first defendant, “wrongfully and unlawfully pointed and discharged a firearm at the plaintiff” at Debshan Ranch, Gweru, on 26 April 2008. As a result of second defendant’s wrongful and unlawful conduct the plaintiff sustained injuries, pain, shock and suffering, the nature and effect whereof is detailed in the medical report that was attached to the summons and declaration.

As a result of the foregoing the plaintiff suffered the following damages;
1. Medical/ hospital expenses US$ 8 000.00
2. Pain, shock and suffering – past, present and future US$20 000.00
3. Anticipated future medical expenses and operations US$50 000.00
   Grand Total US$78 000.00

In a joint pre-trial conference minute, the matter was referred to trial on four agreed issues viz:
1. Whether or not the second defendant was acting within the course and scope of this employment with the first defendant.


2. Whether or not the second defendant acted wrongfully and unlawfully in discharging the firearm at the plaintiff.

3. What injuries were sustained by the plaintiff

4. The quantum of damages.

The battle at the trial pitted the plaintiff and the first defendant, the second defendant having had his plea struck out for defaulting the pre-trial conference.

When the trial was about to commence on 14 June, 2012, Mr Mpofu raised a point in limine which he said it being a point of law would be able to dispose of the matter. His contention is summarised hereunder.

The plaintiff is suing in delict. Under Aquilian liability the plaintiff must, inter alia specifically plead the wrongfulness of the defendant’s action as well as fault, which may consist in either intention or negligence. In casu, the plaintiff in paragraph 4 of his declaration alleges that “the second defendant wrongfully and unlawfully pointed and discharged a firearm at the plaintiff”. What is therefore alleged therein is only wrongfulness and not fault. The result is that the plaintiff’s cause of action has not been disclosed. On that ground the plaintiff’s claim must be dismissed.

For this legal proposition, a number of authorities were relied upon. These are: a) Boberg, The Law of Delict Vol .1 page 24-25 where the learned author states that in order to succeed under the Aquilian action a plaintiff must establish four requirements, viz:

(a) wrongful act or omission; (b) fault which may consist in either intention or negligence; (c) causation which must not be too remote, and (d) patrimonial loss.

b) Brian Nyaguse v Skinners Auto Body Specialists and Steven Hudson N.O HH 32-2007 in which PATEL J upheld the defendants’ exception and dismissed the plaintiff’s claim in delict for failure to allege fault in the declaration – having only alleged wrongfulness and unlawfulness and having failed to remedy the defect despite having had his attention drawn to the anomaly via a letter from the defendant’s legal practitioners. It was held that the absence of a specific averment of fault rendered the declaration fatally defective as not disclosing a valid cause of action.
 c) Border Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 131 (H) at 139B-E. In that case MAKARAU JP. (as she then was) returned a finding of absolution from the instance at the end of a contested trial. The court held that the plaintiff alleged only wrongfulness leading to an economic loss without grounding its claim in the lex Aquilia which requires a mental element in the form of negligence or dolus before liability can be founded.

d) Amler’s Precedents of Pleadings 4th edition page 192 which states that if fault is grounded on negligence then the negligence must be specifically pleaded and the particular grounds of the negligence must be alleged. In casu, fault was not specifically pleaded.

e) Muchakata v Netherburn Mine 1996 (1) ZLR 153 (SC) which held that a point of law can be raised at any stage of proceedings.

f) J.D.M. Agro-consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H) which allows a defendant to raise a point in limine even at trial stage.

g) Order 21 Rule 138 (c) of the High Court Rules, 1971 which contemplates that an exception can be argued before trial commences. And Order 1 Rule 4C which authorises a court/judge to condone departure from the rules in the interests of justice cannot be invoked because dealing with void proceedings is a waste of court’s time.

h) Parish v King 1992 (1) ZLR 216 (S) which ruled that delictual damages are calculated as at the date of the delict. In casu the alleged delict was committed in 2008. The plaintiff’s claim is denominated in United States dollars yet in 2008 Zimbabwe was trading (officially) only in Zimbabwe dollars. The delict should therefore be compensated in Zimbabwean currency. Our law stipulates that if a party who suffered damage under Zimbabwean dollars intends to sue in foreign currency, the declaration must state and articulate basis for that claim.

The point in limine was bitterly opposed by Mr Moyo. He said he was utterly surprised by the first defendant’s conduct of ambushing him by telephoning him at 9am informing him of the intention to raise the point in limine at the trial due to commence an hour later. The matter went through all the throes of pleadings as well as the pre-trial conference stage and the first day of its continuous roll set down on 11 June, 2012 but the point in \textit{limine} was never raised. By ambushing the plaintiff in this fashion the procedure adopted is prejudicial to the plaintiff and is not in conformity with the rules for every party must know in advance what to meet in court. He urged the court to dismiss the point in \textit{limine} on that score.

More importantly, so the argument went, if there was any merit in this sudden application, it would have been the second defendant’s sole prerogative to take such exception since it is his conduct which is being interrogated but he is no longer on the radar. The first defendant’s real issue pertains simply to vicarious liability. The first defendant should have raised the point in \textit{limine} as an issue at the pre-trial conference and had it included in the minute of issues referred to trial.

Procedurally, properly construed, the point in \textit{limine} raised is a plea in bar or exception whose specific rules to be followed are in Order 21 Rules 137, 139, and 140. The first defendant should not take us back to a procedure it failed to follow in 2010.

The alleged defect in the declaration is not a point of law but of fact so the \textit{Muchakata} case cited does not apply.

Also, the first defendant is confusing pleadings and evidence hence the \textit{Border Timbers} case referred to was one for absolution but in \textit{casu} it does not know the kind of evidence the plaintiff is going to lead. Paragraph 4 of the declaration clearly states that the second defendant wrongfully and unlawfully pointed a firearm at the plaintiff and then discharged it thereby causing injuries to the plaintiff, which is an assault upon the body of the plaintiff. There was accordingly an intention to injure which can be implied: \textit{Amler’s Precedents of Pleadings 5th} edition page 216. Both the defendants in their plea accepted that the weapon was discharged and shot the plaintiff.

Regarding the point relating to the currency claimed, it is not a matter which can be disposed of without hearing evidence. If the plaintiff is able to establish that he incurred damages in foreign currency (US\$) he is still entitled to recover in that currency. Whether the court is going to accept or reject the annexure to the declaration showing how the damages were computed is a matter of evidence. Also, the second head of the damages is for pain and suffering, past, present and future and evidence will show it despite the fact that the injuries were sustained in 2008. The third head of damages is for anticipated future medical expenses and operations and that will be incurred in current currency (US$). This can only be determined after hearing evidence contrary to the contention that the act occurred in 2008. He urged the court to dismiss the application whatever it is - exception or point in *limine* - for it is calculated to confound and embarrass the plaintiff.

I agree with Mr Mpofu that in an Aquilian action, a plaintiff must establish a wrongful act or omission as well as fault in the form of intention or negligence in addition to causation and patrimonial loss as stated by the learned author Boberg *supra*. I also agree that on the authority of the *Nyaguse* case *supra* and the authorities cited therein that failure to specifically plead fault renders a declaration fatally defective as not disclosing a valid cause of action. However, that case was dealing with an application for an exception proper where-before the plaintiff’s attention had been drawn to his failure to specifically plead fault in terms of Order 21 Rule 140 (1) but the plaintiff had not heeded the complaint. This is not the position in *casu*. In the case before me, the defendants pleaded to the claim as couched. They saw it fit not to raise any complaint pursuant to Rule 140 (1). The matter proceeded through a pre-trial conference where the parties agreed that what was being pleaded was the *lex Aquilia* and the real issue for determination was whether the first defendant was vicariously liable for the second defendant’s wrongful and unlawful act of discharging the firearm at the plaintiff (the second defendant’s defence having been struck out), the injuries sustained by the plaintiff and the quantum of the damages if any. These two events constitute a handicap to the first defendant’s so called point in *limine: Border Timbers case supra*.

Over and above that, it must be borne in mind that unlike mathematics, law is not an exact science. In the *Nyaguse* case *supra* it was held regarding implied fault, that where fault forms an essential ingredient of liability, as in most Aquilian actions, fault on the part of the defendant must be specifically pleaded and proven in order to enable a reasonable inference of liability to be drawn from the proven facts. As pointed out above, that case is distinguishable from the instant in that in *casu* the first defendant never invoked Rule 140(1) to have the defect sought to be excepted to rectified and that the first defendant pleaded to the claim as couched and even went through the pre-trial conference without any remorse. Where a trial is held, as was the case in the *Border Timbers* case supra or is intended to be held as is the case in this matter, the defendant having pleaded without complaint and having agreed to the issues at the pre-trial stage, fault can be implied from the evidence led or to be adduced despite the plaintiff not having specifically pleaded it in the declaration.

This appeals to both common sense and justice especially where the plaintiff in the instant case will lead evidence that when the majority of the plot holders including himself stood up in order to proceed to the village head to have the issue resolved the second defendant cocked his gun, retreated a bit and fired indiscriminately. The plaintiff was then hit by shots discharged by the second defendant and he fell down. He then heard the second defendant shouting in Shona saying “Aripi andapfura ndoda kumupedzisa” (Where is the one I shot? I want to finish him off.) paragraphs 2.8 and 2.9 of the plaintiff’s summary of evidence. Surely if such evidence is led and proved at trial, fault on the part of the second defendant can be implied or inferred even though such was not specifically pleaded in the declaration.

There was divergence as to whether the point in *limine* was of law or fact. No indepth argument was presented pertaining thereto. However, even assuming that it was one of the law, the *Muchakata* case supra would not apply because that case held that a point of law going to the root of the matter can be properly raised at any time, even for the first time on appeal if its consideration involved no unfairness to the party against whom it is directed. In *casu* raising it at this stage given the first defendant’s conduct of failing to raise it before plea and at the pre-trial hearing and giving the plaintiff only an hour’s notice prior to its broach will undoubtedly occasion untold prejudice to the plaintiff. In fact, to allow it would sound the death knell to the plaintiff’s claim. Invoking Rule 4C will certainly not be in the interests of justice given the foregoing remiss conduct by the first defendant.

Regarding the issue of currency claimable, I am persuaded by Mr Moyo’s argument that this is a matter to be cured by evidence to be led at the trial. In any case some of the heads for the damages claimed relate to the current and future costs so this cannot be the proper forum for the first defendant to raise such an argument.
 In the result the point raised by the first defendant in *limine* to have the plaintiff’s claim dismissed for failure to specifically plead fault on the part of the second defendant in his declaration is found to be of no merit and is hereby dismissed with costs. The parties are directed to liaise with the registrar for a mutually convenient date for the resetting down of the matter for trial on the continuous roll.

*Kantor & Immerman*, plaintiff’s legal practitioners

*Gill Godlonton & Gerrans*, the first defendant’s legal practitioners
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