Bruno Enterprises (Pvt) Ltd (Under Judicial Management) v Tenke Fungurume Mining S.A.R.L.

### Preamble
1
HH 390-21
HC 2036/15
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BRUNO ENTERPRISES (PVT) LTD

(Under Judicial Management)

versus

TENKE FUNGURUME MINING S. A. R. L.

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 29 July 2021

Application for absolution

T. Magwaliba, for the plaintiff

T. Mpofu, for th e defendant

TAGU J: On 1 August 2018 this court dismissed an application for absolution made by the defendant. The defendant appealed to the Supreme Court against this court’s decision under case number SC 421/19. The Supreme Court made the following order-

“IT IS ORDERED BY CONSENT THAT:

The appeal is allowed with costs

The decision of the court a quo is set aside

The matter is remitted to the court a quo for determination of all the issues that were placed 	before it”

It is pursuant to the above order that this second application is being attempted.

In this case the defendant applied for absolution from the instance and dismissal of the plaintiff’s case with costs.

The plaintiff had issued summons claims from the defendant for payment of an amount of US$6 098 400 (six million ninety eight thousand four hundred dollars) being the total amount that the Plaintiff lost as a result of the Tenke disaster, interest at the prescribed rate from the date of issue of the summons to date of full payment as well as costs of suit on a higher scale.

The plaintiff’s declaration as amended read in part as follows-

“3. 	Sometime in 2010, the plaintiff through Manica Freight, hired its two trucks to the 			defendant for the haulage of its copper consignment at the defendant’s Mutanda mine.

On the day in question, on defendant’s premises, the defendant’s workers, or agents, or 	consorts and or representatives burnt the plaintiff’s trucks beyond recognition without 	lawful cause.

As a result of the above unlawful actions, the plaintiff suffered loss in the sum of

USD$6 	098 400.00 (six million ninety eight thousand and four hundred United States 	dollars being loss of future profit and earnings it would have made had the delict in 	question not been committed.

The defendant owed plaintiff a positive duty of care to take reasonable steps to prevent its 	workers, agents, consorts or representatives from burning plaintiff’s trucks situated at 	defendant’s premises. To the extent that it owed such duty, and by negligently failing to 	safeguard the plaintiff’s property, the defendant is delictually liable to the plaintiff for the 	loss suffered.

Additionally, in its capacity as the principal and employer of the persons who unlawfully 	destroyed plaintiff’s trucks, the defendant is delictually and vicariously liable to the 	plaintiff for the loss suffered. ”

The parties agreed on the following as being issues for trial as captured in the joint pre-trial conference minute.

Whether the plaintiff’s alleged debt has prescribed.

Whether defendant owed a duty of care to plaintiff and whether that duty was 	breached.

Whether the defendant is vicariously liable for the conduct of the persons who 	damaged the trucks which the plaintiff asserts was its property’

If vicarious liability is established, whether the plaintiff suffered damages and the 	quantum of such damages (if proven)

The plaintiff led evidence from three witnesses. They were extensively cross examined.

EVIDENCE FOR THE PLAINTIFF

The first to give evidence on behalf of the Plaintiff was one Mr KASAJI MBUMBA a citizen of DRC Congo, an employee of Mr Bruno. He is employed as an assistant driver. His evidence was that on 9 August 2010 he was at FUNGULUME accompanying drivers in the province of Greater Katanga. They had two trucks with trailers and he was in a truck driven by one JOHN NKOMA while the other truck was being driven by one JUSTICE going to Tenke Fungulume mine. When they arrived they crossed the gate, and when next to the offices the truck in which he was in stopped. There were some people who had gathered wearing Tenke Fungulume Mine uniforms, blue in colour written T.F.M. The mob started to throw stones at the trucks, broke windscreens and started looting food from the trucks. Others threw bottles at the trucks and the trucks caught fire and were burnt beyond repair. He then took John Nkoma and Justice to the police for safety. He denied the suggestion that the people who burnt the trucks were illegal miners and maintained that he saw people in Tenke Fungulume Mine uniforms. Under cross examination when it was put to him that the people were not employees his response was “perhaps if you go to that area you would not ask that question.” According to him these people were on industrial action. He further denied the suggestion that three trucks were burnt.

The second to give evidence on behalf of plaintiff was Mr BRUNO FUNGAYI TAKAWIRA a Zimbabwean citizen. He is one of the shareholders in Bruno Enterprises which is now under Judicial Management. His evidence was that by 9 August 2010 the company had 6 haulage trucks and two of the company’s trucks were burnt in DRC. He produced registration books from CVR of the burnt trucks. Immediately when he received information that the trucks had been burnt he travelled to DRC, met one lady Yonda who took him to Tenke Fungulume Mine offices. There he was attended to by Yugo Ceaser the vice President of Tenke Fungulume Mine who assured him that they would be paid $164 000.00 though the vehicles were insured to the tune of $1.4 to $1.5 million dollars. He spoke of admissions of liability by the defendant and efforts to recover from the defendant. For example in or around the year 2013 the sum of US$300 000. 00 was discussed and a promise to make payment was made by the defendant. However, the defendant having firstly admitted liability, then dilly dallied in paying and later changed goal posts and refused to pay, leading to plaintiff filing this claim. At one point the plaintiff was made to withdraw the criminal and civil case it had filed with the Magistrates Court in the Republic of Congo having been fooled into believing that the defendant was going to pay and that the matter had been settled.  He further produced various contracts he had with customers to ferry cargo and the losses he incurred. On the suggestion that the trucks had been burnt by illegal miners his comment was that that was a falsified report by defendant meant to mislead their American Counter parts. He further produced various documents to proof their loss.

Under cross examination he maintained that their trucks were burnt by defendant’s employees. He further maintained the undertakings, meetings between 2010 and 2015 made to pay by the defendant which were later repudiated. There was a lot of mudslinging and character assassinations that occurred between the counsel for the defendant and this witness giving this trial dramatic moments.

Next to give evidence for the plaintiff was Mr Jabulani Mavhimba, a Chartered Accountant who prepared Bruno Enterprises (Private) Limited review of the Tenke-Fungurume disaster loss/ profits claim at pages 1 to 6 of the plaintiff’s supplementary buddle of documents. The document is self- explanatory. He authored this document after being hired to do so by Mr Bruno Takawira using the materials supplied to him as he had not worked for Mr Bruno Takawira before.

The plaintiff then closed its case. At the close of the plaintiff’s case the defendant made an application for absolution from the instance.

In the application for absolution from the instance some interesting and at times rather confusing submissions were made, some based on issues not pleaded, such as that the law that should have been applicable in this case was that of DRC Congo, that Mr Bruno Fungayi Takawira was a fraudster, was corrupt, was a criminal who served a sentence for refusing to pay a debt, and at one point threatened opposing counsel a day before the hearing etc. In short it was stated that the plaintiff failed to establish a prima facie case warranting the defendant to be put on its defence. 	That the claim had prescribed etc.

The application for absolution from the instance was opposed by the plaintiff.

The applicable principle in an application for absolution from the instance, which has stood the test of time, has been enunciated in the Gascoyne v Paul & Hunter 1917 TPD 171 at 173, a case that has been followed in many other subsequent cases, as follows:

“At the close of the case for the plaintiff, therefore, the question which arises for the consideration 	of the Court is, is there evidence upon which a reasonable man might find for the plaintiff? And if 	the defendant does not call any evidence, but close his case immediately, the question for the Court 	would be, ‘is there such evidence upon which the Court ought to give judgment in favour of the 	plaintiff?’’

The same principle is stated by the Appellate Court in Oosthuizen v Standard General Versekeringsmaatskappy Bpk 1981 (A) at 1035H-36A as follows;

“If at the end of the plaintiff’s case there is not sufficient evidence upon which a reasonable man 	could find for him or her, the defendant is entitled to absolution.”

Where there is only one defendant, as in casu, at the close of the case for the plaintiff,

“It can be fairly inferred that the Court has heard all the evidence which is available against the 	defendant, any further evidence that would be forthcoming if the case continued would be likely to 	operate only to the detriment of the plaintiff. That being so it is considered unnecessary in the 	interest of justice to allow the case to continue any longer if, the plaintiff has closed his case, there 	is no prima facie case against the defendant.”

Vide Putter v Provincial Insurance Co. Ltd and Another 1963 (4) SA 771 (WLD) at 772F-G. In Gordon Lloyd Page & Association v Rivera & Another 2001 (1) SA 88 (SCA) at p 92 para [2] where the Court said that:

“The test for absolution to be applied by a trial court at the end of the plaintiff’s case was formulated 	in Claude Neon Lights (SA) Ltd v Daniel 1976 (40 SA 403 (A) at 409G-H in these terms:

“When absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied 	is not whether the evidence led by the plaintiff establishes what would finally be required to be 	established, but 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 Gascoyne and Hunter 1971 	(TPD 170 at 173, Ruto Flour Mills (Pty) Ltd v Adelson (2) SA 307 (T)”

This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co. Ltd v van der Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmith Bewysreg 4 ed at 91-2).

The plaintiff’s witnesses haven been labelled by the defendant’s counsel liars and or incredible witnesses not worthy believing. It is trite that at this stage I need not concern myself with the credibility or otherwise of the evidence of the plaintiff, unless, of course, it is demonstrably clear that the plaintiff and or witnesses, palpably broke down under cross examination. Vide The South African Law of Evidence by DT Zeffert p 163 where the learned authors cited Solomon in Siko v Zonsa 1908 TS 1013.

In the present case it is common cause that the plaintiff, a company under judicial management was an owner of two motor vehicles, viz heavy trucks which it employed for the carriage of copper and other products. It plied the Johannesburg/Durban – Republic of Congo route. It is common cause that on 10 August 2010 the two trucks with trailers were destroyed within the precincts of the premises of the defendant in the Republic of Congo. The site of the incident was after a boom gate manned and controlled by officers of the defendant. The trucks in question had entered the premises and passed the boom gate. They were at or near the mine offices of the defendant. The trucks in question were torched and nothing could be salvaged. The perpetrators of the arson were identified by Mr Kasaji Mbumba, a witness for the plaintiff who was accompanying the two trucks. He noted that the arsonists were wearing blue uniforms imprinted with the words “TFM” the acronym for the defendant Tenke Fungulume Mine. From the plaintiff’s evidence these were employees, invitees, associates or consorts of the defendant.

It is common cause that the officers of the defendant at the mine premises and the security check point or boom gate took no action to prevent the damage to the plaintiff’s property by the defendant’s employees. It is the conduct of these employees that was a direct result of the loss which was occasioned to the plaintiff. From the evidence of Kasaji Mbumba these were not illegal miners. Several meetings over a period of time between 2010 and 2015 were held between the representatives of the plaintiff and the representatives of the defendant. Several proposals of payment were made by the defendant’s representatives who later changed their minds and refused to pay. The quantum of the plaintiff’s claim was established not only by Mr Bruno Takawira but also by an accounting expert Mr Jabulani Mabimba.

As to the applicable law, the court took comfort in the case of Coutts & Co. v Ford & Anor 1997 (1) ZLR 440 (H). The court’s hands are not bound. Even assuming that for any reason the court considers that it intends to depart from the eminently sensible approach (via media) set out in the Coutts judgment, an application for absolution from the instance would be a premature instance to debate that point. It is a point debated at the end of the evidence. On vicarious liability of the defendant, basing on the evidence of Mr Kasaji Mumba, the defendant’s employees, invitees, consorts or associates damaged and destroyed the Plaintiff’s motor vehicles. The defendant cannot escape liability. See Minister of Police v Rabie 1986 (1) SA 117(A). As to the duty of care, it is my view that given the circumstances of this case the defendant owed the plaintiff a duty of care. Since the plaintiff managed at least to establish some damages, the plaintiff has established a prima facie case. The application for absolution from the instance is without merit since the defendant has a lot to explain.

IT IS ORDERED THAT

Application for absolution from the instance is dismissed.

There is no order as to costs.

Merss Machaya and Associates, plaintiff’s legal practitioners

Dube Manikai and Hwacha, defendant’s legal practitioners.